AJWS Final Analysis of Gender Land Laws

A Review of womens property rights as a
result of land reform in kenya:

Implementation progress, gaps and way forward
KENYA LAND ALLIANCE
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Email: info@kenyalandalliance.or.ke | Website: www.kenyalandalliance.or.ke
2017
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Table of Contents
Acknowledgements I
Table of Contents II
Acronyms and Abbreviations III
Chapter 1: Overview 7
1.1: Land Rights of Kenya Women: Situation Analysis 7
1.1.1: Global Context 7
1.1.2: Regional Context 8
1.1.3: Purpose and objectives of the review report 8
1.2:Terms of Reference 9
Chapter 2: Methodology 10
2.1: Design 10
2.2: Source of Reviewed Materials 10
2.3: Desk Review Process 10
Chapter 3: Compendium of Existing Laws, Rules, regulations and Official Policies
related to land and impacting on the rights of women in Kenya 11
3.1: International Treaties 11
3.2: National Laws and Policies 12
3.2.1: National Land Policy 12
3.2.2: The Constitution of Kenya, 2010 13
3.2.3: Acts of Parliament: What has Been Passed and Status of its Implementation 14
3.2.4: What is Pending 20
Chapter 4: Desk review of Existing Laws, Rules, regulations and Official Policies related
to land and impacting on the rights of women in Kenya 23
4.1: key issues in women land rights addressed in the Law Reforms in Kenya 23
4.1.1: Discrimination of women in land rights: 23
4.1.2: Marriage and property rights: 23
4.1.3: Inheritance rights: 23
4.1.4: Registration and titling 23
4.1.5: Land Based Resources: 24
4.1.6: Womens Involvement: 24
4.1.7: Dispute resolution: 24
4.2: Recent Court Decisions touching on Womens Land Rights 25
4.3: Gaps in Existing Laws 27
4.3.1: Discrimination of women in land rights: 27
4.3.2: Marriage and property rights: 27
4.3.3: Inheritance rights: 27
4.3.4: Registration and titling 28
4.3.5: Land Based Resources: 28
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A Review of Womens Property Rights as a Result of Land Reform in Kenya: Implementation Progress, Gaps and Way Forward
Chapter 5: Discussion 30
5.1: Discussion on Current Legislations 30
5.2: Discussion on Pending Legislation 35
5.3: How land reforms in Kenya have influenced womens land rights 36
5.3.1: Influence of culture on womens rights 36
5.3.2: Ownership and control of property by married women 38
5.3.3: Spousal consent in land transactions 40
5.3.4: Land Rights of disadvantaged and vulnerable women 41
5.3.5: Womens Inheritance rights 42
5.3.6: Womens rights in Land Adjudication and Administration 43
5.3.7: Womens access to justice in land disputes 44
5.3.8: Womens rights in Large Scale Land Based Investment 45
5.3.9: Commitment to gender equity in land 46
5.4: State-supported land adjudication on land reforms 47
5.5: Summary of Key Gaps in the actualization of Women Land Rights 48
Chapter 6: Recommendations 50
Resources 53
iv
Forward
S ix years, since the promulgation of the Constitution of Kenya, 2010 and working with women and other
stakeholders such as Councils of Elders, Religious Leaders and Land Registrars in Kenya for increased awareness
on women land and property rights, KLA has come to a conclusion that gender equality and equality is not only
positive for women (and men), but a prerequisite for development.
Over the years the world has struggled with the question of advancing women land, natural resources and
property rights with most of the international legal frameworks which provide a basis for countries in many parts
of the world with a starting point to ensure that these rights are enforced, respected and upheld. Some of these
instruments include but not limited to: The Convention on the Elimination of All Forms of Discrimination Against
Women (CEDAW), 1979; The Beijing Platform for Action 1995, and The Maputo Protocol of 2003, which urges
African countries to undertake legislative and administrative reforms to give women full and equal access to
economic resources, including the rights to inheritance and to ownership of land, property and natural resources.
The International Covenant on Civil and Political Rights (ICCPR), 1966 which came to force in 1976; it outlaws
registration or policy that would discriminate against women in property, housing and land rights. The Universal
Declaration of Human Rights (1948) establishes the rights of everyone to property regardless of sex. Others are
The Economic and Social Council Commission on the Status of Women Resolution 42/1, The Human Rights and
land rights discrimination, Convention on Economic, Social and Cultural Rights, 1966; and the Istanbul 1996
Preamble on human settlement.
The Kenya Constitution 2010 lays the foundation for women land and property rights in its national values
and principles of governance which include equity, social justice, inclusiveness, equality, human rights, non-
discrimination and protection of the marginalized. This ensures women are recognized as equal partners who
are equality and equity involved in and should benefit from the affairs of the country. Chapter 5 on Land and
environment contains numerous provisions providing opportunity for legislation and realization of land and
property rights for women in Kenya. Despite all these instruments at global, regional and national levels the rights
of women on land, natural resources and property rights remains poorly enforced in Kenya and many parts of
the Africa and the world. Kenya Land Alliance will continue engaging state and non-state actors working on land
and attendant resource rights, building partnerships at all levels, advocating and empowering Women in Kenya to
demand for their land and property rights from an informed perspective backed by the existing laws and policies.
Odenda Lumumba
Chief Executive Officer
1
Acknowledgements
T he successful completion of this task was a result of concerted synergies of efforts from various stakeholders.
The Kenya Land Alliance (KLA) wishes to acknowledge the support of all who were involved in making
possible this review of womens land and property rights in Kenya.
At the core of the review was the technical contribution of the consultant and the KLA staff. Specific thanks go to
Nancy Ondeng, David Achero and Paul Mwaura who provided direction and excellent guidance at every phase
of the process to shape this report.
Sincere gratitude goes to Ambrose Rachier, Catherine Mumma, Eileen Wakesho, Esher Mwaura, Faith Alube, Fridah
Githuku, Jessica Oluoch, Onyango Ondeng, Praxedis Wekesa and the research team at Katindi and Company for
their valued contributions and information into this report. KLA special thanks to the strategic partner financial
support for the Implementation of Constitutional Provisions on Women Land and Property Rights.
2
Acronyms and Abbreviations
CEDAW Convention on Elimination of all forms of Discrimination Against Women
COMESA Common Market for Eastern and Southern Africa
CSO Civil Society Organization
EAC East Africa Community
HIV Human Immunodeficiency Virus
ICCPR International Convention on Civil and Political Rights
ICESCR International Covenant on Economic, Social & Cultural Rights
KLA Kenya Land Alliance
LA Land Act
LRA Land Registration Act
NGEC National Gender and Equality Commission
NGO Non-Government Organization
NLC National Land Commission
NLP National Land Policy
NLUP National Land Use Policy
NUDP National Urban Development Policy
3
CHAPTER 1: Overview
1.1: LAND RIGHTS OF KENYA WOMEN: SITUATIONAL ANALYSIS
1.1.1: GLOBAL CONTEXT
Globally, over the past few decades, attempts have been made to improve womens land rights through enhancing
the International legal framework. Womens land rights are explicitly invoked in the international legal framework
on womens rights. However, it remains the obligation of individual states to domesticate and ensure the respect,
fulfilment and enhancement of international human rights obligations.
The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), adopted in 1979
by the UN General Assembly, is often described as an international bill of rights for women. CEDAW is the most
significant among the existing human rights instruments because it is concerned exclusively with promoting and
protecting womens human rights. It requires that states take all appropriate measures to eliminate discrimination
against women, including ensuring equal rights for women in respect of ownership, acquisition, management,
administration, enjoyment and disposition of property.
The Beijing Platform for Action 1995 is an agenda for womens empowerment and indicates that governments
should undertake legislative and administrative reforms to give women full and equal access to economic
resources, including the rights to inheritance and to ownership of land and other property, credit, natural resources
and appropriate technologies.
International Covenant on Civil and Political Rights (ICCPR) adopted and opened for signature, ratification and
accession by General Assembly resolution 2200A (XXI) of 16th December 1966 with entry into force on 23rd
March 1976. The ICCPR outlaws registration or policy that would discriminate against women in property,
housing and land rights. It also contains provisions prohibiting forced evictions without adequate protection and
requires state parties to provide effective remedy for persons whose rights have been violated.
Other conventions and declarations helpful to the cause of women land rights include:
The Universal Declaration of Human Rights (1948), which establishes the rights of everyone to
property regardless of sex.
The Economic and Social Council Commission on the Status of Women Resolution 42/1,
Convention on Economic, Social and Cultural Rights Art.11 (1966); and
The Istanbul 1996 Preamble1
The approaches adopted by these different international instruments pay special attention to the importance of
womens rights to own land and other property.
1.1.2: REGIONAL CONTEXT

Regionally, the Maputo protocol, adopted in 2003 and currently signed by 37 countries in Africa, including
Kenya guarantees comprehensive rights to women. It has catalysed the adoption of mechanisms to ensure gender
equality including concrete action plans for implementations. It calls for state parties to take appropriate measures
to ensuring access to land by women for the enjoyment of food security. It obligates state parties to promote
womens access to and control over productive resources such as land and guarantee their right to property. These
provisions are aimed at guaranteeing women equal rights with men on land access, ownership and utilization.
Istanbul Declaration on Human Settlements (esp. Par.7) III Commitments D

1
4
COMESA Gender policy also recognizes the critical and important contribution of women to the economic and
social transformation of the region. Among the objectives of the policy is to promote equitable access for both
women and men to and control over resources including land and related services such as credit and legal rights.
Another objective is to facilitate the implementation of remedial measures to address existing inequalities in
access to and control over factors of production including land.
East Africa Community Treaty recognizes the importance of gender equality as well as women in socio-economic
development. Gender is listed as one of the essential principles alongside good governance, the rule of law,
accountability, transparency, social justice, equal opportunities, recognition, promotion and protection of human
and peoples rights that govern the achievements of the communitys overall objectives. The Treaty recognizes the
significant contribution that women make towards the process of socio-economic transformation and sustainable
growth, and, the importance of the full participation of women as well as men in the economic and social
development of the partner states.
Womens right to land in Africa is also regulated through customary law which in most cases tend not to grant
gender equality in access to land. Despite formal laws that forbid discrimination against women, significant
disparities between the rights of men and women arise from customary practices. While the formal legal system
acknowledges the rights of women to acquire land in their own right through both purchasing and allocation, few
women are able to realize and benefit from these rights where customs and traditions are applicable. Inheritance
of clan or family land continues to be governed by custom and tradition which mostly fail to protect womens
rights. Land adjudication processes as well involve a complex interaction of statutory and customary laws and
administrative systems where local interpretation of land rights is relied on to determine formal recognition and
registration.
1.1.3. Purpose and objectives of the review report

Kenya Land Alliance (KLA) is implementing a project on women land and property rights in Kenya. The project
focuses on advocating for effective implementation of Constitutional provisions for secure women land rights. In
August 2015, Kenya celebrated its fifth anniversary since the promulgation of the constitution of Kenya 2010. In
line with this KLA intends to take a retrospective look at implementation of land and gender legislation enacted
within the five years. KLA specifically is playing an engagement and watchdog function over the government
titling process that started in 2013 in some parts of the country with un-adjudicated and unregistered community
lands and public lands that are being converted into settlement schemes through allocations.
Given that community land is the largest category of land in Kenya, KLA under its programmatic work proposes
to pressure the government against perpetuating practices that continue to side line women in matters land and
property ownership contrary to the Constitution. KLA continues to advocate and demand for actualization of the
Constitutional provisions and those of successive land laws that provide for co-tenancy cum- joint titling and
protection of matrimonial property. A national forum held in September 2015 brought together multi-stakeholders,
including rural women who have been at the forefront in the efforts of actualizing women land rights in Kenya.
The outcome of the forum was an increased commitment and organized push for the realization of Womens Land
and Property Rights by all stakeholders and the output a renewed commitment of the participants toward the
fight for the actualization of Womens Land and Property Rights. This commitment was solidified through signed
declarations and on how each participant intended to move forward in this quest.
The main purpose of this report is to review progress in the implementation of womens property rights as a result
of on-going land reforms. It looks at the gaps in operationalization of the Constitutional provisions and subsequent
implementation of the successive land laws and related laws on women land and property rights and provides
a platform for offering timely recommendations for improvements within the land sector. The report provides a
planning base for advocacy strategies to strengthen women land rights through complementary actions by the
various actors.
5
CHAPTER 2: Methodology
2.1: DESIGN
This assignment predominantly adopted a desk review research design. A compendium of relevant international
and regional conventions, and relevant Kenya laws and policies relating to land in Kenya was reviewed along a
comprehensive list of literature, case law and newspaper articles. To understand the impact of several key land
reforms and laws in Kenya, the consultant held discussions with key expert resource persons and incorporated
their views in the analysis. These interviews with selected resource persons were held to give context to the gaps
and challenges identified and informed proposed solutions towards improving womens land rights in Kenya.
2.2: SOURCE OF REVIEWED MATERIALS
Materials reviewed were sourced from various channels. Literature, international and regional conventions and
some local laws and policies were retrieved from an internet search. Kenya Land Alliance, expert resource persons
and other partners working on womens land rights provided some of the materials reviewed.
2.3: DESK REVIEW PROCESS
Relevant laws were examined to help situate the context of women land rights under existing laws. Resources
including publications, reports, concept papers and case law, between 2010 and 2016 with a particular focus on
womens land rights were used to determine the application of these laws.
It should be noted that the extent to which conclusions could be drawn on the impact of the legal reforms on
women land rights was limited to the extent to which such implementation had commenced.
6
CHAPTER 3: Compendium of existing
laws, rules, regulations and official
policies related to land and impacting
on the rights of women in kenya
This chapter first provides an overview of the developments in legal framework that deals with land in Kenya and
related legislations which contain provisions that impact on womens land rights.
3.1: INTERNATIONAL TREATIES
Land is an important source of livelihood for the majority of people in African societies. Allocation, ownership,
distribution and utilization of land are issues of great concern in Kenya particularly for women. Despite their role in
the agricultural sector which contributes significantly to the countrys economic growth, patriarchal systems have
limited their decision-making power and control over land. Thus, land reforms in Kenya are driven by the need
to provide a lasting solution to the long non- resolved land disputes including squatters, land dispossession, lack
of accountability and transparency among others in different parts of the country including gender inequalities
on land issues.
Article 2(5) of the Constitution of Kenya (2010) provides that general rules of international law shall form part of
the law of Kenya while article 2(6) states that any treaty or convention ratied by Kenya shall form part of the law
of Kenya. These provisions have been relied on in various judicial decisions. It recognizes that all international
and regional instruments, to which Kenya is party to, form part of the laws of Kenya2. This means that these treaties
and conventions ratified by Kenya do not (now) need to be domesticated for them to have the force of law in
Kenya3.
Kenya is a signatory to various international and regional instruments that secure women land rights including
those discussed in Part 1.1.1 of this report:
Convention on the Elimination of All Forms of Discrimination against Women (CEDAW, 1981);
International Covenant on Economic, Social and Cultural Rights (ICESCR, 1976);
African Charter on Human and Peoples Rights(Adopted in 1981); and
Protocol to the African Charter on Human and Peoples Rights on the Rights of Women in Africa
(Adopted in 2003).
Kenya also subscribes to other policy guidelines such as the 1995 Beijing Platform for Action and the Framework
and Guidelines for Land Policy in Africa which also recognize womens land rights.
2
Re The Matter of Zipporah Wangui Mathara - Bankruptcy Cause No. 19 of 2010; Beatrice Wanjiku & Another v. Attorney General & another -
Petition 190 of 2011 eKLR [2012]
3
Parliament has enacted the Treaty Making and Ratification Act (No. 45 of 2012) to provide the procedure
for the making and ratification of treaties and connected to give effect to the provisions of Article 2 (6) of the Constitution
7
3.2: NATIONAL LAWS AND POLICIES
Over the years several legislative advancements have sought to strengthen the rights of women to land and
property. Undoubtedly, the legal framework on womens land rights in Kenya is fairly progressive with more
gains than ever before. However, for their realization, this must go beyond just general normative declaration of
womens and mens equal rights to land and property. Effective implementation of the laws and policies is the only
way to guarantee actualization of land rights for women.
3.2.1: NATIONAL LAND POLICY4

The demand for a National Land Policy came from a broad-based coalition of non-governmental organizations
(NGOs), civil society (CSOs), and donors, and it was a reflection of dissatisfaction with land policies and the legal
framework on land5. These reforms were necessitated by the existence of many land laws, some of which were
inconsistent and incompatible, that resulted in complications in land management and administration in Kenya.
The National Land Policy (NLP) adopted in 2009 provides the roadmap for the development of an integrated and
more coherent legal framework relating to land governance and management in Kenya.
The Vision of the NPL is to guide the country towards efficient, sustainable and equitable use of land for
prosperity and posterity.
The overall objective of the National Land Policy is to secure rights over land and provide for sustainable
growth, investment and the reduction of poverty in line with the Governments overall development objectives.
The guiding principles of the NLP are participation, equitable access to land; inclusion, secure land rights;
intra-and inter-generational equity; transparent and democratic administration of land; effective regulation of
land development; and gender sensitivity.
The NLP identifies that women land rights require special intervention. It recognizes gender inequality in land
ownership, in succession, transfer of land and decision making processes. It points out the difficulties HIV places
on women and the challenges faced within pastoral systems. Finally, the NLP recognizes the impact of under-
representation of women in institutions that deal with land and financial resource restrictions that limit their
involvement in land dealings. The NLP proposes several recommendations to advance womens property rights
including:
Enforcement and strict adherence to provisions on non-discrimination in ownership of, and access to land
and under all tenure systems.
Outlaw all regulations, customs and practices that discriminate against women in relation to land.
The recognition and protection of womens interest in registration of community land.
Reviewing community land governance institutions and procedures and incorporating
participatory approaches.
Ensure women are entitled to equal rights to land and land-based resources during marriage, upon
dissolution of marriage, and after death including joint spousal registration and documentation of
land rights.
Distinguishes between inheritance rights of married and unmarried women directing the Government
to secure the inheritance rights of all.
Sessional Paper No. 3 of 2009

4
http://www.kenyalandalliance.or.ke/wp-content/uploads/2015/03/Kenya-Land-Policy-Analysis.pdf
5
8
3.2.2: THE CONSTITUTION OF KENYA, 20106
The national values and principles of governance outlined in the Constitution include equity, social justice,
inclusiveness, equality, human rights, non-discrimination and protection of the marginalized. This ensures women
are recognized as equal partners and are equally involved in and benefit from all spheres of life in the country7.
Chapter 4 on The Bill of Rights contains numerous provisions providing opportunity for the realization of land
rights for women in Kenya. The state is required to recognize and protect human rights and to promote social
justice that is important and relevant to womens struggle for gender equality and gender equity8 . The Constitution
assures women of prioritization of their needs and requires the state to make laws to promote them9 and prohibits
discrimination against women and stops anyone from using; among other grounds, their marital status, pregnancy,
health status, culture, disability, against them 10. The Constitution guarantees women equal right to acquire and
own property in their own right enabling them to use land, own, control and undertake any other transaction in
land as a man would 11. Further, a husband and a wife are entitled to equal rights in marriage and can equally
make decisions and controlling the affairs of the family. It also requires that laws are formulated to protect womens
interest in property acquired during marriage 12.
Chapter 5 of the Constitution is dedicated to addressing land rights which when read with the right to property in
the Bill of Rights present tremendous gains for women. This chapter requires that all use of land should be equitable,
efficient, productive and sustainable. Some of the supportive principles governing the use and management of
land recognized in this chapter include equitable access to land; security of land rights; elimination of gender
discrimination in law, customs and practices related to land and property in land 13. The Constitution also provides
for the need for protection of dependants of a deceased person holding interest in land including the interest in
spouses in actual occupation of land.
The Constitution enhances access to justice for women by demanding favourable interpretation of laws in
implementation, easier access and simpler court processes as well as encouraging the use of more affordable and
accessible community dispute resolution mechanisms 14. The Constitution provides more opportunity for women
to be included in leadership and decision making positions by requiring that there are not more than two-thirds of
the same gender appointed or nominated15 in positions of leadership. Devolution was established as mechanism
of bringing services near to the people; therefore, enhancing participation of women in making decisions on
issues that affects them and possibly designing specific solutions 16. There was a strict five year timeline for
enactment of the two third gender rule legislation and provision of administrative procedures required to give
effect and implementation of the provisions contained in the Constitution.
6
Constitution of Kenya, 2010
7
Ibid, Article 10
8
Ibid, Article 19
9
Ibid, Article 21
10
Ibid, Article 27
11
Ibid, Article 40
12
Ibid, Articles 45 and 68
13
Ibid, Article 60
14
Ibid, Articles 20, 22 and 60
15
Constitution of Kenya 2010, Article 81
16
Ibid, Article 6
9
3.2.3: ACTS OF PARLIAMENT: WHAT HAS BEEN PASSED AND STATUS OF ITS IMPLEMENTATION
3.2.3.1: THE NATIONAL LAND COMMISSION ACT, 2012
This Act operationalizes the National Land Commission established under the Constitution to manage public
land in Kenya. The recent Land Laws (Amendment) Act No. 28 of 2016 revises some provisions of this Act. This
commission is available to anyone to lodge a complaint should they be treated unfairly. It has the power to initiate
investigations into present and historical land injustices, and recommend appropriate redress. The process as
required by the Act encourages the use of alternative dispute resolution mechanisms, which are recognized and
binding.
3.2.3.2: THE LAND ACT NO. 6 OF 2012

The Land Act effects the provisions of the Constitution on Land 17. Its main purpose is to revise, consolidate
and rationalize land laws, and provide for sustainable administration and management of land; repealing some
previous laws touching on the same. Of particular interest to women are the principles adopted from the NLP and
the Constitution providing for equitable access to land, elimination of gender discrimination in law, customs and
practices related to land and property in land, non-discrimination and protection of the marginalized, democracy,
inclusiveness and participation of the people and equal opportunities.
3.2.3.3: THE LAND REGISTRATION ACT NO 3 OF 2012

This Act has consolidated the provisions of all laws that previously guided the registration of land interests in
Kenya into one Law with the objective of making it easier to register land through one common land registry. The
Act provides for elaborate transfer and registration procedures of interests in land. The process of execution of
transfer documents has changed in that the documents must be executed and witnessed and the person executing
the documents must be examined by the chief registrar of land. The Act defines a charge as including a Mortgage;
this presupposes that mortgages in Kenya will acquire the character of charges. This law emphasizes that a charge
shall always operate as a security only and not a transfer.
Before the recent amendments, this law contained express provisions recognizing spousal rights as an overriding
interest in property essentially protecting interests of spouses in co-tenancies. However, husband and wife were
at liberty to reach an agreement that only one spouse is taking the land in, his or her own name. The requirement
for spousal consent was extended to all land and was not limited to matrimonial property. If the spouse undertook
the disposition deliberately provides misleading information, the other spouse upon discovery can contest the
transaction rendering it illegal. Regrettably, these provisions on spousal interest as an overriding interest and the
broad requirement on spousal consent on transactions by a married individual have since been reversed by more
recent amendments. They are now specifically limited to matrimonial property.
3.2.3.4: THE LAND LAWS (AMENDMENT) ACT NO. 28 OF 2016

The Land Laws (Amendment) Act No. 28 of 2016 introduces amendments to the provisions of the Land Act touching
on eviction from public and private land. A valid court order; which is crucial instrument for the realization of
many fundamental rights, is now not a legal requirement in such evictions.
The Land Laws (Amendment) Act No. 28 of 2016 attempts to clarify existing confusion over definition of
matrimonial property and defines the same as any interest in land or lease that is acquired by a spouse or
spouses during the subsistence of a marriage. Matrimonial Property is now distinguished from matrimonial home
which is defined under the Act to mean any interest in land that is owned or leased by one or both spouses and
occupied by the spouses as their family home.
17
Article 60 of Kenya Constitution
10
3.2.3.5: THE MARRIAGE ACT, 2014
This Act amends and consolidates the various laws relating to marriage and divorce by bringing together the
various existing laws in the country into one coherent legal document, therefore, regulating all Hindu, Islamic,
Civil, Christian and Customary marriages. Though recognized under this Act, all these unions must be registered.
Thus, a customary marriage or consensual union that is not registered will not be recognized as a marriage under
the law. The marriage act recognizes and codifies polygamy as part of customary marriages allowing men to marry
multiple wives without the previous wive(s) permission. While a monogamous marriage cannot be converted into
a polygamous marriage, a polygamous form of marriage may be converted into a monogamous marriage, if both
parties to the marriage agree and the husband only has one wife at the time of the conversion. This law affords
parties to any form of marriage equal rights, stating that parties to a marriage have equal rights at the time of the
marriage, during the marriage and at the dissolution of the marriage.
3.2.3.6: THE MATRIMONIAL PROPERTY ACT NO. 49 OF 2013

The Act regulates and provides for the rights and responsibilities of spouses in relation to matrimonial property. For
a long time despite frequent usage of the term, matrimonial property had never been properly defined by statute.
Judicial decisions had attempted to fill the void until the enactment of this Law. The Act defines Matrimonial
Property as matrimonial home or homes; household goods and effects in the matrimonial home or homes or any
other immovable and movable property jointly owned and acquired during the subsistence of the marriage. Trust
property including property held in trust under customary law is however expressly excluded from matrimonial
property. This definition limits matrimonial property to that which is jointly owned and acquired during the
marriage. Thus, immovable property registered under the name of a husband or wife may be rendered his personal
property.
The Act also provides equal rights to women as men in marriage to acquire, administer, hold, control, use and
dispose of property acquired individually and separately other than matrimonial property. Where a spouse gives
to the other spouse property as a gift, the Act provides that there is a rebuttable presumption that the recipient
becomes the absolute owner of that property. The Act provides that ownership of matrimonial property vests in
the spouses according to the contribution of either spouse towards its acquisition, and shall be divided between
the spouses if they divorce or their marriage is otherwise dissolved18. However, the Act provides that where
matrimonial property is acquired during marriage in the names of the spouses jointly, their beneficial interests in
the matrimonial property are equal. So where property is registered in the name of both spouses a 50:50 interest
is guaranteed. Under this Act, a spouse who makes a contribution towards the improvement of a non-matrimonial
property acquires a beneficial interest in the property equal to the contribution made.
The Act also provides for division of property in a polygamous family upon divorce. At the dissolution of a
polygamous marriage, the matrimonial property acquired between the man and the first wife before he married
the subsequent ones shall be retained equally between the husband and the first wife. Thereafter the remaining
matrimonial property shall be divided subject to each of the wives and husbands contribution to the acquisition
of such property.
The Act formally allows couples to enter into prenuptial agreements, which were not previously recognized. The
Act also provides that no spouse is permitted to evict the other except by a valid court order. Eviction of a spouse
is only possible following an order by a court where both parties will have been heard.
18
MPs Pass Contentious Matrimonial Property Bill, DAILY NATION (Nov. 12, 2013).
11
3.2.3.7: COMMUNITY LAND ACT 2016
The largest category of land in Kenya is community land. The much awaited Community Land Act which was
signed into law on August 31 2016 allows communities to be registered under the Societies Act, to make decisions,
including rules and by-laws, over their land. Agreements on investments on community land will be shaped to
benefit communities. The Act contains express provisions on non-discrimination on the basis of gender and
marital status among other grounds thus guaranteeing every member of a community equal right to benefit from
community land. It specifically provides for women and other marginalized groups. It also provides that every
man or woman married to a member of the community shall gain automatic membership of the community and
such membership shall subsist until the spouses legally divorce and the woman remarries or the woman remarries
after the death of a spouse. Act provide for the administration and management of community land by forming
the Community Land Management Committee and the Community Assemblies.
3.2.3.8: LAW OF SUCCESSION, CHAPTER 160, REVISED 2015 [2012]

The Law of Succession Act is the governing law that determines how property is to be distributed following the
death of the title holder of land and property. Under the Act, widows have rights to inherit deceased husbands
property, but that these rights can be removed following remarriage. Additionally, widows have control over
the capital of the estate and the estate itself, but this control is only temporal upon their death, this control is
relinquished to other family members.
3.2.4: WHAT IS PENDING

3.2.4.1: THE LAND USE POLICY
The Constitution of Kenya 2010, Kenya Vision 2030 and the Sessional Paper No. 3 of 2009 on National Land
Policy all call for a clear framework for effectively addressing the challenges related to land use. It is in response to
this call that this Land Use Policy has been developed, incorporating all activities that are likely to have an impact
on the use of land and its resources. The Ministry of Lands and Physical Planning has initiated the preparation of
a National Land Use Policy (NLUP). The draft Land Use Policy incorporates all activities that are likely to have an
impact on the use of land and its resources.
The draft NLUP recognizes that gender imbalance in the control of productive assets such as land has resulted in
women being more vulnerable to poverty among farming communities. Among many other recommendations, the
draft NLUP requires mainstreaming of gender in land use planning and management. The draft NLUP establishes
guiding principles and values including equity in decision-making, effective public participation, elimination of
discrimination in land use and public benefit sharing.
3.2.4.2: DRAFT NATIONAL URBAN DEVELOPMENT POLICY OF 2012

The Draft National Urban Development Policy (NUDP) of 2012 is intended to complement provisions of the
Land Act relevant to urban settings; majority of who are vulnerable and poor women. The NUDP seeks to create a
framework for sustainable urban development in the country. The draft addresses many environmental challenges
including Land as a thematic area and seeks to improve environmental conditions and social services in informal
settlements to make their occupants less vulnerable.
12
CHAPTER 4: Desk review of
existing laws, rules, regulations
and official policies related to
land and impacting on the rights
of women in kenya
4.1: KEY ISSUES IN WOMEN LAND RIGHTS ADDRESSED IN THE LAW REFORMS IN KENYA
The legal and policy reforms addressed some key issues relating to womens land rights which are summarized
below.
4.1.1: DISCRIMINATION OF WOMEN IN LAND RIGHTS:

The NLP and the Constitution have established various principles recognizing equitable access and emphasize
strict adherence to provisions on elimination of all forms of gender discrimination in law and customs related to
land and property. Similarly, the Land Act No.6, 2012, Community Land Act, 2016 and Matrimonial Property Act
NO. 49 of 2013, all contains express provisions on non-discrimination on the basis of gender and marital status
among other grounds guaranteeing women equal right to benefit from land. Despite this, various legal provisions
and persisting practices continue to elicit sharp critic on discrimination.
4.1.2: MARRIAGE AND PROPERTY RIGHTS:

The Laws generally contain provisions that strengthen land and property rights of married women. The validity of a
marriage in the first instance is a prequalification that determines a claim of spousal interest in land and property
upon divorce. The recognition of all types of marriages including customary marriages extends safeguards for
many women whose rights were previously not recognized. By restating Constitutional provision on equal rights
and obligations of spouses the Marriage Act, 2014 and the Matrimonial Property Act NO. 49 of 2013, enables
more women to claim interest in matrimonial property in and upon the dissolution of marriage. A wife may
exercise exclusive ownership of property acquired independently in her name before the marriage, customary
property held in trust (e.g. property inherited by a woman from her father) and gifts to her by her husband.
4.1.3: INHERITANCE RIGHTS:

The Constitution guarantees the protection of dependents of a deceased person holding interest in land including
the interest in spouses in actual occupation of land.
4.1.4: REGISTRATION AND TITLING

The increased demand for legal support in claiming land rights and the reported court cases by women to
enforce land rights under the Matrimonial Property Act, NO. 49 of 2013, the Land Act No.6, 2012 and the Land
Registration Act, No 3 of 2012, provide good indication of slow but steady increase in formal recognition of land
ownership by women.
13
4.1.5: LAND BASED RESOURCES:
The Community Land Act, 2016, specifically provides for women and other marginalized groups and makes
provisions that agreements on investments on community land will be shaped to benefit all members of
communities. It ensures that woman married to a member of the community gain automatic membership of the
community until the woman remarries upon divorce or death.
4.1.6: WOMENS INVOLVEMENT:

The NLP (2009) recognized the impact of under-representation of women in institutions that deal with land
and financial resource restrictions that limit their involvement in land dealings. The Constitution provides more
opportunity for women to be included in leadership and decision making positions by requiring that not more
than two-thirds of the same gender be appointed or nominated.
4.1.7: DISPUTE RESOLUTION:

Legislation has embraced a wide array of avenues for land dispute resolution which women are able to access.
Besides availability of the formal justice system of courts and tribunals, Constitutional Commissions such as the
National Land Commission, the National Gender and Equality Commission, the Commission on administrative
justice are also able to accept complaints on injustices relating to Land. The adoptions of Alternative dispute
resolution (ADR) mechanisms including community dispute resolution mechanisms will strengthen land dispute
resolution.
4.2: RECENT COURT DECISIONS TOUCHING ON WOMENS LAND RIGHTS
Courts play a critical role in the evaluation, application and re-examination of laws with a view to improvement,
implementation and enforcement thus realizing the intended objectives. In Kenya, decided cases particularly from
higher courts are relied on and considered influential in the determination of similar issues in future. It is expected
that the courts will provide clarity in the interpretation and application of the provisions of the law.
Before the passing of the Matrimonial Property Act, NO. 49 of 2013, the Constitution provided that parties to
marriage were entitled to equal rights at the time of the marriage, during the marriage and at the dissolution of the
marriage. The courts interpreted this provision to mean that on dissolution of marriage, the matrimonial property
would be divided equally between the parties.Similarly, the Court of Appeal in Civil Appeal No. 127 of 2011,
Agnes Nanjala William V. Jocob Petrus Nicola Vander Goes agrees with the High Court and pronounced itself as
follows:
This article clearly gives both parties to a marriage equal rights before, during and after a marriage ends. It
arguably extends to matrimonial property and is a constitutional statement of the principle that marital property
is shared 50-50 in the event that a marriage ends. However pursuant to Article 68 parliament is obligated to
pass laws to recognize and protect matrimonial property, particularly the matrimonial home.Pending such
enactment, we are nonetheless of the considered view that the Bill of rights in our Constitution can be invoked to
meet the exigencies of the day.
The courts have in the past, and now under the new laws, vested spousal interest in matrimonial property according
to the contribution of either spouse towards its acquisition.
In the case of Edith Nyambura Mwanjera v. Symon Mwanjera Ndara and two others, Nairobi ELC Civil Suit
Number 1437 of 2013 the wife in order to challenge the sale of their matrimonial home by the husband had to
provide evidence to support her claim of interest in the same. The court accepted evidence of a sale agreement
that she and the husband entered into with a third party as purchasers of the suit property, and of a statement
showing money she sent to her husband which she alleges was used to acquire the said property.
14
In Civil Suit No. 39 of 2012, UMM v. IMM (2014) eKLR, the court considered the issue of whether the equality
contemplated by the Constitution was an automatic 50:50 sharing of matrimonial property upon dissolution of the
marriage. In applying this provision, Justice Francis Tuiyot determined that whereas the Constitution provides for
equality of spouses in marriage, in relation to matrimonial property that right was safeguarded by vesting in each
spouse ownership according to their respective contributions be it monetary or non-monetary. In consideration
of the retrospective application of the Constitutional provision on spousal interest in property acquired before
promulgation of the Constitution, the courts have observed that the right to equality is inherent and indivisible to
all human beings, it matters not that the course of action accrued before the current Constitutional dispensation.
Although the application of spousal consent is fairly recent in case law, it has become increasingly common in
applications for injunction where parties allege that mortgaged property is matrimonial property in a desperate
attempt to shield its sale following default in repayment of loans. It has however been held over and over by the
courts including in David Ngugi Ngaari V Kenya Commercial Bank Ltd (2013) eKLR and again in Julius Mainye
Anjega v Eco Bank Limited (2014) eKLR and also in Judith Muok Atieno v Barclays Bank of Kenya Ltd [2016]
eKLR that once a property is given out as a security to secure a loan or financial accommodation, whether it
be matrimonial property or not, it is deemed to be held as a commercial property capable of being sold. The
protection availed by the courts has been to require necessary notices of intention to sell be given to the spouse.
The courts have also held that spousal consent cannot operate retrospectively to properties charged or mortgaged
before the land laws came into force.
In the case of RLA v FO & Another19 the court had the chance to deal with an issue of presumption of marriage
and correctly stated in part that there are only five types of Marriages that are recognized in Kenya. However,
because the prescribed registration mechanism yet to be effected, the court had to make a determination on the
existence of the union qualified to be recognized as a marriage. It was concluded that because no dowry was
paid in accordance with customary law, the union could not qualify as a customary marriage. Further, the court
also held that there was no cohabitation because the requirements of cohabitation were not met because they
had not lived together.
4.3: GAPS IN EXISTING LAWS
4.3.1: DISCRIMINATION OF WOMEN IN LAND RIGHTS:

Despite express legal provisions prohibiting discrimination, discriminatory practices continue to be experienced
by women in land and property rights. The Marriage Act, 2014 allows men to marry multiple wives but does
not allow the same for women. Womens consent is not required before these men take up a subsequent wife
yet spouses are considered to have equal rights in marriage. The law of Succession , Chapter 160; revised 2015
[2012],which contains discriminatory provisions on the distribution of a deceased persons property, is yet to
be reviewed to ensure compliance with the provisions of the Constitution. Finally, the Trust Land Act, Chapter
288, 2012, the Land Adjudication Act, Chapter 284,2016, Land (Group Representatives) Act, Chapter 287,
2010, the Land Disputes Tribunals Act chapter303A, 2010 and the Land Consolidation Act, Chapter 283,2010,
all recognize customary law in the determination of rights in relation to community land. On the most part
community processes do not allow for effective participation by women and as such continue to impede on
gender equality in land and property rights.
12
(2015) eKLR
15
4.3.2: MARRIAGE AND PROPERTY RIGHTS:
Legal registration of a marriage is a prequalification to entitlement of spousal interest in matrimonial property.
Therefore lack of formal recognition is problematic for spousal land rights registration, as many of the marriages
in customary communities in Kenya are not currently registered, but the Attorney general has already issued a
Gazette notice for the registration of customary marriages to commence on August 1st, 2017.
Except for matrimonial property that is registered in the name of both spouses where a 50:50 interest is guaranteed,
the provisions of the Matrimonial Property Act,2014, require that a woman provide evidence and quantify their
contribution, whether direct or indirect, towards the acquisition of the matrimonial property to determine their
share in interest. Division of property in a polygamous family is also provided for upon divorce but it remains
unclear how those rights are determined during the existence of such polygamous union. This means that access
and control of property by co-wives during the subsistence of a polygamous marriage remain uncertain. Lastly,
spousal consent is required in transactions involving property recognized as matrimonial property and failure to
obtain this consent will invalidate the same. However, the rights of married women to other property acquired
particularly where it is registered under the husbands name is subject to judicial determination and the burden of
proof remains on the wife who makes such a claim.
4.3.3: INHERITANCE RIGHTS:

While the Constitution guarantees the protection of dependents of a deceased person holding interest in
land including the interest of spouses in actual occupation of land, the substantive law in this regard is not in
compliance. The Succession Act, Chapter 160, revised 2015 [2012], contains provisions that negatively impact
womens access and ownership of property and land especially when the man dies without making a will.
While a widow has the rights to inherit if they remain unmarried, their rights are not absolute and are subject
to their status in the local community as a widow and diminish upon remarriage. Similarly a widow can only
exercise control over the inherited estate during her lifetime and for the benefit of immediate family needs. Her
capacity to make investments for future benefit of the family is limited and she cannot bequeath such property
upon her death. Because the law recognizes custom and tradition in the governance of inheritance of clan or
family land, inheritance practices continue to maintain gender bias against women.
4.3.4: REGISTRATION AND TITLING

Majority of land in Kenya remains non-adjudicated and therefore unregistered and this situation is likely to exist
for some time. The trend has been that where land is arable and commercial there is pressure for title in contrast
to pastoral lands. Male domination of spaces and institutions where women would be able to access information
and exert their claim on interest in land puts women interests at a disadvantage.
It is hypothesized that as an immediate result of the supportive legal framework on womens land rights, without a
doubt the number of female beneficiaries of registration and titling will be higher than previously. However, there
is a lack of quantitative evidence to support these assumptions as currently the available data on the process and
the records in lands registries is not gender-disaggregated.
4.3.5: LAND BASED RESOURCES:

The recognition of specific womens rights in benefits arising from land based resources is still fairly weak. Leasing
of large tracts of community agricultural land to investors mostly happen without exhaustive consultations with the
local people, and particularly without consideration of the benefit and impact on women in those communities.
The Mining Act No. 12 of 2016 attempts to make provision for community participation in environmental issues
but fails to specifically recognize benefits to women within that community.
16
CHAPTER 5: Discussion
5.1: DISCUSSION ON CURRENT LEGISLATIONS
The adoption of the National Land Policy (2009) together with the promulgation of the Constitution of Kenya 2010
was a demonstration of the countrys commitment towards resolving the myriad of land tenure problems. These
established various principles recognizing equitable access; security of land rights and most significantly the
elimination of all forms of gender discrimination in law and customs and practices related to land and property.
The enactment of the Constitution was followed by a number of land related legal framework which has and
continues to undergo significant changes. A set of land laws giving effect to the Constitution; namely the Land Act,
no. 6 of 2012, Land Registration Act, No 3 of 2012 and National Land Commission Act, 2012 were approved in
2012. Further, a new set of marriage laws have also been enacted which are significant for property in marriage
unions; the Matrimonial Property Act, 2013, and the Marriage Act, 2014.
National Lands Policy (NLP, 2009) marked a critical step towards strengthening women land rights in Kenya by
creating a real opportunity for equitable relations in land through effective legislation. In acknowledging gender
inequality in land ownership, succession, transfer of land and decision making processes and making strong
recommendations to advance womens property rights the policy provided an important opportunity to strengthen
womens land rights in legislation and implementation.
The Constitution of Kenya 2010 recognizes that women are among special groups entitled to Constitutional
protection and to this end guarantees women enjoyment of their rights in a more comprehensive manner than
even before. The Constitution affirms the supremacy of the Constitution over all other laws; essentially ensuring
that women are not subjected to customs and traditions that violate their right provided in the Constitution.
By making international laws part of the laws of Kenya, the Constitution ensures that women are able to use
favourable provisions in instruments such as the CEDAW and ICESCR, as well as the national laws, to safeguard
their rights20. Looking back from the time the Constitution was promulgated to date, the many hopes and aspiration
of Kenyan women as far as their land rights are concerned are yet to be realized. This has been caused by the slow
implementation of key Constitutional provisions that make Kenyan women have less to celebrate about six years
later. This calls for a time of reflection to address the gaps, challenges, lessons learnt and strategies going forward.
The National Land Commission Act, 2012 provides women access to a forum where they can lodge their
complaints against unfair treatment in access to and ownership of land. It is therefore the duty of the NLC to look
into land ownership to ascertain that both men and women have equal rights in terms of access and control.
Further, the Commission is required to establish committees and county offices for the better management of its
functions.
The land act No. 6 of 2012 contains specific provisions that are favourable to women. The Act requires that
any document or form used in applying for or used to grant a charge on a matrimonial home be executed by the
charger and any spouse of the charger living in that matrimonial home. While the provision does not apply to
charges created prior to the commencement of the Act, there is now a requirement that necessary notices be given
to all the spouse/spouses before any sale of matrimonial property as a result of default in payment. This mitigates
the previous injustices of evictions of families from their matrimonial home without their knowledge and without
an opportunity to challenge the sale of their matrimonial homes.
20
Ibid, Article 2
17
The Land Laws (Amendment) Act No. 28 of 2016 has unfortunately eliminated the rebuttable presumption of
joint tenancy where a spouse obtained land for co-ownership and use by both spouses; previously incorporated
in Section 93 of the Land Registration Act (LRA). Spousal Interest is no longer automatically deemed to be an
overriding interest over registered land without their being noted on the register. This requires that more deliberate
efforts to be made on the part of married couples to register property in their joint names for such an interest to
be recognized in law. It is important to understand that parties that jointly own any property are all required to
execute any documents relating to the sale or transfer of such property in such a case the issue spousal interest
will not arise.
The amendments also eliminate the duty imposed on a lender to inquire whether the borrowers spouse had
consented to the charge or transfer in all property where the borrower or transferor held the land or dwelling
house in his or her name individually. By this amendment consent of both spouses is now only required in the
case of any alienation of matrimonial property during the subsistence of a monogamous marriage. The validity of
a charge on matrimonial property can be challenged on the basis of failure to obtain spousal consent.
The amendments regarding evictions from public and private land also recently introduced will disproportionately
affect the poor and marginalized particularly women, who are not protected from the realities of forced evictions.
It does not require evictions to be carried out with a court order crucial for the realization of many fundamental
rights and respect for rule of law.
The Marriage Act, 2014, poses a challenge to women firstly by qualifying their entitlements to the formal
recognition of the union. Where a marriage is not registered as required by law women rights are guaranteed
where the property is registered under both the spouses names. The greatest weakness of the Act is that it allows
men to marry multiple wives. Further the law grants men the right to marry a second, third or even fourth wife
without the previous wives permission; contrary to previous customary practice that only allowed men to take
subsequent wives only after approval of the previous. Despite the Act restating the Constitutional provision that
parties to a marriage have equal rights and obligations at the time of the marriage, during the marriage and at
the dissolution of marriage, some of the provisions in this Act are in contravention of the same Constitutional
guarantee.
Article 45(3) of The Constitution provides that parties to a marriage are entitled to equal rights at the time of the
marriage, during the marriage and at the dissolution of the marriage. Section 77 (1) of The Marriage Act provides
that, the court may order a person to pay maintenance to a spouse or a former spouse (a) if the person has
refused or neglected to provide for the spouse or former spouse as required by this Act;(b)if the person has
deserted the other spouse or former spouse, for as long as the desertion continues;(c)during the course of any
matrimonial proceedings;(d)when granting or after granting a decree of separation or divorce.The validity of a
marriage in the first instance is a prequalification in law that determines a claim of spousal interest in land and
property upon divorce.
The Matrimonial Property Act, 2013 has had the most significant impact for married women. This law recognizes
womens ownership of matrimonial property and to some extent protects their interests. Where matrimonial
property is registered in the name of both spouses then an equal interest in the property is guaranteed. However,
where matrimonial property is registered in the name of only one spouse, then ownership is vested in the spouses
according to individual contributions towards its acquisition. In this case upon divorce, the wife is not guaranteed
an automatic equal share to property in her husbands name unless she provides evidence and quantifies
her contribution towards the acquisition of the property. Further, whereas there is a requirement for proof of
contribution towards acquisition of assets during the marriage, the spouses will be equally liable for the debts
acquired as the Act provides that spouses must share equally in any liabilities incurred during the marriage and
for its benefit.
18
That said, fortunately the recognition of direct as well as indirect contribution by a spouse includes non-monitory
forms of contribution which is a big win for women who, despite undertaking numerous other roles in relation to
property, are often not in a position to directly financing land acquisition. Contrastingly, the plain reading of the
Act reveals that spousal contribution is recognized only towards its acquisition. A spouses contribution towards
the maintenance, improvement and productivity of property acquired by one spouse may not result in vested
interest in matrimonial property. However, such improvements can be used to claim interest in other property
acquired during the marriage which may not qualify as matrimonial property. The Act also protects women who
previously risked being kicked out of family property, including homes, apartments and plots that are demanded
back by the husband after marital disputes by requiring such evictions to be done only with a valid court order.
The Act also provides for division of property in a polygamous family upon divorce. The matrimonial property
acquired between the man and the first wife before he married the subsequent ones shall be retained equally
between the husband and the first wife. Thereafter the remaining matrimonial property shall be divided subject
to each of the wives and husbands contribution to the acquisition of such property. By allowing prenuptial
agreements couples can mutually agree before marriage whether investments owned before or after marriage
would be separately owned or jointly owned matrimonial property. Notwithstanding other co-wife/wives, one
wife can enter into an agreement with the husband to acquire property without the participation of the other
co-wives and in such situations, the property can only be shared between the husband and that particular wife.
Community land Act, 2016 marks the first time since independence that communities will be issued with title
deeds to secure and protect their land. Community land comprises the largest category of land in Kenya and
demand for it has gone up recently following discovery of oil and other natural resources. Without a title deed,
communities have found it hard to negotiate for benefits whenever a public or private project is established
in their property. Progressive provisions have been included and they provide an opportunity to correct past
injustices against women. However, the Act provide for the administration and management of community land
by forming the Community Land Management Committee and the Community Assemblies. Given that most forms
of community land tenure systems in Kenya are replete with discriminatory practices against women, there is a
real risk of institutionalizing patriarchy thus undermining womens representation in decision making and dispute
resolution at community level. There is need to review and provide for a more effective mechanism for womens
representation in community land administration and adjudication institutions to ensure that women are not left
out when it comes to decision making and benefit sharing.
The Mining Act, 2016 is important following the growth of the extractives sector. In the past communities,
have not received any royalties from minerals found in their land; they sign away their land rights without
adequate compensation or alternative resettlements. In essence resource extraction leaves communities poorer
as opposed to uplifting their livelihoods. At the very grassroots level, advisory committees that are supposed
to act as spokespeople to the multinationals have been compromised by political leaders interests and this
leaves the communities with little avenues to address their issues resulting to mass action and riots. The law is
a great improvement in its attempt to make provision for community participation and in environmental issues.
However, the Act fails to expressly provide the precise formula for compensation to communities and leaves this
for negotiations within a Mining Agreement many of which do not expressly incorporate gender considerations.
Additionally, specific recognition of benefits to women within that community are not recognized in the law. It
expressly requires the consent of the owner of private land where minerals are identified. It is however silent on
the area where land is owned jointly, for instance in the case of spouses; failing to state that both spouses must
give consent to avoid injustices to women.
The Environment and Land Court Act, 2011 ensures that non-discrimination, justice and equity are factored
into judicial decisions on land. A recent judgement in the case Malindi Law Society V Attorney General & 4
19
Others [2016] eKLR decreed that only the Land and Environment Court has jurisdiction over land disputes in
Kenya. Womens Land rights mean nothing if they cannot be claimed particularly in courts where rights can be
conclusively determined and enforced. If a person cannot afford legal services, this can undermine the enjoyment
of their rights. Very few women in Kenya especially those living in rural areas, who need legal services can afford
to pay for them, and most are ignorant of their legal rights. Women who do not know their legal rights can neither
claim nor enforce those rights. The Constitution recognizes the right of access to justice for all; this includes the
protection of marginalized and vulnerable persons. Kenya finally has a legal aid system thanks to the Legal Aid
Act, 2016 which will aid the National Legal Aid Programme (NALEAP) to carry out its functions. However, unless
a gender-sensitive national legal aid program model is adopted that prioritizes women and land rights; including a
recognition of community-based legal aid as a strategy, womens ability to secure land rights will not be realized.
5.2: DISCUSSION ON PENDING LEGISLATION
The search for gender equality in political leadership and decision making bodies in Kenya has been a long
journey. Women in Kenya have been campaigning for increased representation in politics and decision-making to
ensure their concerns and opinions are recognized in decisions that affect them as women, mothers, and wives
and as human beings. Hence the two-thirds gender provision in the Constitution was a culmination of a decade
of fierce debate and civil society activism for affirmative action for achievement of increased political inclusion
and public appointments of women in state institutions. However, despite intense lobbying THE TWO-THIRDS
GENDER BILL seeking to entrench the two-thirds gender rule as provided by the constitution was rejected by the
male-dominated parliament. Because the country does not have a framework to enforce compliance with the
not more than two thirds gender principle, should the number of elected Members in the National Assembly and
Senate fail to meet the minimum gender threshold the country faces an unprecedented constitutional crisis.
5.3: HOW LAND REFORMS IN KENYA HAVE INFLUENCED WOMENS LAND RIGHTS
Despite enormous gains in ensuring a progressive legal and policy framework in Kenya, womens land rights
continue to lag behind those of men. Ineffective implementation of the laws and policies poses a serious threat
to the realization of equitable land rights for women. In addition, the patriarchal nature of the Kenyan society
continues to present an obstacle on the realization of women land rights. Actualization of womens land rights
as provided in law depends on the level of awareness about them by both the enforcers and the beneficiaries,
the ability to invoke them and to what extent cultural norms and traditions are practiced and followed instead of
formal laws.
5.3.1 INFLUENCE OF CULTURE ON WOMENS RIGHTS

The influence of patriarchal gender ideologies in land rights cannot be ignored. The patriarchal nature of the
Kenyan society still presents an obstacle on the realization of women land rights. Despite robust legislative land
reforms, most women still have the mentality that they are not entitled to own any land, as it is perceived as a
mans role particularly in rural areas. Even in urban areas women still face the threat of being chased from or
having to fight for the right to remain in their matrimonial homes upon dissolution of their marriage as a result of
divorce or death. Property is still largely registered to the men and women still finding it hard to own land in their
own name. As such they cannot confidently lay claim on matters relating to inheritance of land.
Due to socialisation and the patriarchal system, the perception of men and women is yet to fully embrace the
rights of a woman to own land. For example, some men and women continue to hold the view that women should
not claim rights to their fathers property because they will eventually get married and acquire land through their
husbands. Some empowered women shy away from confrontational claims against their male relations for fear of
ostracization on allegations of creating conflict.
20
Women, however, are stepping out of the social norms and finding innovative ways to acquire land in their own
names. Awareness programmes conducted by civil societies have opened up the platform for women to learn
about their rights. Acquisition of land has been aided by better organizing, availability of credit due to the law
that governs loans with affordable and reasonable interest rates. Affirmative action has also been taken by a
few government led programs to promote womens economic standing such as the Uwezo Fund. There is a lot
of awareness of rights by women in so far as land is concerned; specifically, knowledge that the Constitution
safeguards womens land rights. However, the challenge lies in how this awareness can inspire action. More
efforts are required in creating a comprehensive understanding on how this knowledge can be applied by women
to enforce land and property right remains a big challenge particularly in ancestral land. Besides legal and human
rights awareness, women empowerment initiatives should include targeted knowledge and skills in technical and
procedural aspects of realizing land rights.
5.3.2 OWNERSHIP AND CONTROL OF PROPERTY BY MARRIED WOMEN

The current laws provide for measures to promote equitable access to ownership and use of land, elimination
of gender discrimination in law and non-discrimination and protection of the interests of marginalized groups.
The interest of married women in property has been greatly enhanced by the formal legal recognition because
marriage is a major determinant of womens property rights. Similarly, the recognition and protection of womens
non-monetary contributions in the marriage is a bold step. Women in polygamous marriages are also able to
secure their distinct interests in property. Additionally, the recognition of interests in community land by a woman
married in that community is commendable as majority of rural communities did not previously recognize such
an interest. The introduction of pre-nuptial agreements between spouses creates a platform for informed mutually
agreements relating to ownership and control of their property. The concern that womens access to property has
traditionally been through male relations is slowly resolving through womens economic empowerment enabling
them to purchase and acquire land and other property independently.
The extent of such interest in matrimonial property is entirely dependent on the existence and registration of
a valid marriage. Lack of formal recognition is problematic for spousal land rights registration, as many of the
marriages in customary communities in Kenya are not currently registered, and it is unlikely that they will be in
the near future, despite the 3-year window for doing so. A union such as cohabitation or a customary marriage
that is not registered will not be recognized as a marriage under the law. Hence women risk losing their interest
in property acquired during the existence of such unions.
The law recognizes a customary marriage as that which is celebrated in accordance with the customaries relating
to any of the communities in Kenya. Due to the diversity of community traditions and practices, the burden of
proof of a customary marriage presents a unique challenge to women.
On the down side, matrimonial property in law limited to that which is jointly owned and acquired during the
marriage and it is determined at the point of divorce. This raises uncertainty over the extent of a married womens
interest in matrimonial property during the marriage. Additionally, women are not guaranteed an automatic equal
share in matrimonial property but have to provide evidence that the property was acquired during the subsistence
of a valid marriage and that she contributed either directly or indirectly. This was the precedent set by case law
before the promulgation of the Constitution. The impact of this provision in application does not cure the mischief
of denying equitable rights to stay-at-home women and rural women. In practice, it remains very difficult for
wives to prove their contribution to matrimonial property, both because functions such as childrearing, cleaning,
and cooking are difficult to quantify, and because womens names are almost never included on title documents.
This could prove extremely harmful for wives upon divorce, or death of the husband.
21
There is need for increased sensitization amongst legal practitioners on their role in enhancing womens property
rights. For example, presenting clients with all the options for safeguarding ownership in matrimonial property or
even securing interest in other property acquired during marriage. This will ensure more women are presented
with informed choices based on a clear understanding of the options of joint tenancy and tenancy which can
legally be created on all property acquired during the marriage, whether forming part of matrimonial property or
not22.
Use of prenuptial agreements also presents a good avenue for safeguarding land rights and preventing family
wrangles over land.
5.3.3 SPOUSAL CONSENT IN LAND TRANSACTIONS

The Matrimonial Property Act, NO. 49 of 2013, allows for the recognition of spouses having an interest in
matrimonial property, jointly owned between a husband and a wife in both their names or for both their use.
Where a womans name is not included, she will have to prove contribution to the acquisition of the property and
this will determine the extent of her interest.
Any transaction involving matrimonial property now requires spousal consent. The validity of a transfer or charge
on matrimonial property can be challenged on the basis of failure to obtain spousal consent. This provision
enables spouses whose names are not included in the title documents of matrimonial property to secure their
interest. Though a noble intention, spousal consent is raising various challenges in its interpretation and in its
practical application.
While the Act requires spousal consent for transfer of matrimonial property, it falls short of addressing existing
power dynamics within the home and the society. There is an assumption of equality within the household or the
family in which women can freely, without coercion or pressure, consent to such transactions. This assumption
stands in stark contrast to the reality, particularly in rural areas, of gender disparities in access to resources,
education, and decision-making power. Overall in Kenya, the 2014 Demographic and Health Survey estimates
that only about half (54%) of married women participate in decisions pertaining to major household purchases. A
mere requirement for spousal consent absent concrete safeguards seems insufficient at best.
Another challenge is the difficulty in the determination of what comprises matrimonial property which has left
practitioners and implementers with no choice but to require spousal consent in every dealing involving land by a
married person. Further, it is not clear how this requirement would apply in polygamous marriages. The approach
in implementation has been to require that only one wifes consent and as such could be used to the disadvantage
of another.
There is no strict standard of care when it comes to proving that an individual brought before an advocate to
execute land documents is the actual wife of the man transacting on the piece of land or property. For instance,
when people appear before an advocate to execute documents in relation to a conveyance there is no way for
practitioners to ascertain the identity of the spouse. Though registration of marriages before and after 2015 is
a legal requirement, the Attorney Generals office has not started the registration process so one cannot in all
circumstances require the production of a marriage certificate as proof of marital status. The most an advocate can
do is ask her to sign an affidavit to that effect.
Joint tenancy is common in marriage where the spouses want to hold the property equally, and, also want the principle of survivorship to apply. Tenancy in
22
common can also be created where a property can be owned in unequal shares and can be disposed individually through a valid will or otherwise.
22
Currently application spousal consent in conveyance practice has been left to the discretion of practitioners and
enforcers. The courts have severally had to deal with the mischief of its use by a defaulter in a retrospective charge
or absolution of obligations with respect to a debt. There is need to establish and standardize the application of
spousal consent among practitioners. Awareness is also required to ensure similar recognition and compliance in
transactions where individuals transact in informal setups.
5.3.4 LAND RIGHTS OF DISADVANTAGED AND VULNERABLE WOMEN

There have been significant changes for women particularly in terms of increased awareness of their rights over land
and greater opportunity to safeguard them. However, not all women are equally capable of claiming their rights.
Different women are affected by different issues and hence the challenges they face cannot be all homogenous.
Women living in rural areas do not face the same challenges as those who are living in urban areas. A typical
woman in the urban area who is well informed of her land and property rights may struggle to gain access
to financial and credit facilities to enable her buy and own land in her own right. She will have to deal with
corruption and bureaucracy in institutions that facilitate land acquisition and registration. She will struggle with
the power dynamics in her relationships on whether or not to disclose the transaction and whether to register it
jointly with the spouse, in her name only or that of her child/children. A woman in the rural area who equally
knows her land rights will on the other hand deal with discrimination due to varied cultural prejudices against
ownership of land by either married and single women, lack of control over transactions relating to the property
and exclusion in decision making processes and limited information of the technical process of land adjudication
and acquisition of a title deed.
Despite the Constitution prohibiting discrimination on the basis of health status, women living with HIV continue
to face stigma and discrimination. Women living with HIV are still being chased out of their matrimonial homes
after their husbands die. Widows are often blamed for killing the husband by infecting him with HIV and in-laws
use HIV as a justification to dispossess them. This has led to the violation of womens property rights. Lack of
secure tenure increases the burden of HIV on women and reduces their ability to take proper care of their health
needs such as the ability to access proper and consistently care and treatment.
Most women continue to depend heavily on men to access and control economic resources, especially land and
housing. The reality of little or no asset cushion influences womens decision making power. Women trying to
protect their access to land are potentially vulnerable to predatory male officials, resulting in sexual and violent
abuse. Poor women are exposed to sexual exploitation and may even find it difficult to exit a relationship with
abusive partner.
In recognition of the numerous challenges restricting individual opportunities in land markets, women are
innovatively organizing in groups; to leverage the pooling of resources and negotiating power in accessing land
independent of and/or in partnership with men. This not only appears to address issues of resources through
collective investment and ownership. Using this approach woman are also able to avoid undue pressure from
male relations who would claim control of the land were it owned by the woman individually. A group approach
in acquisition of land markets is equally favorable even to vulnerable women such as unmarried and divorced
women especially where group members are equally invested. Government land programs should be informed
by the other underlying factors that influence land rights for disadvantaged and vulnerable women and suitable
approaches should be adopted to address the various circumstances of women in varied backgrounds.
5.3.5 WOMENS INHERITANCE RIGHTS

The Constitution guarantees equal inheritance rights to both men and women, regardless of their marital status.
Whereas other laws have been reviewed to ensure compliance with the provisions of the constitution, the laws of
successions are yet to be reviewed and continue to pose a challenge with regards to application and interpretation
in favor of women land rights.
23
Women are placed at a disadvantage by this law in that any piece of land - other than the matrimonial home-
owned by the husband and at the time of death if not registered under the names of both the spouses will form
part of the estate that is to be distributed amongst all the dependents. The fact is majority of property in Kenya
is registered only under the husbands name. Widows who have children get full rights to the net estate of a
deceased, whereas those who do not only a get certain percentage. These rights are only enjoyed if the woman
does not remarry. Unlike their male counterparts who enjoy absolute right womens rights.
Succession law also excludes agricultural land, crops and livestock in several counties from the provisions of
the law on intestacy and applies customary law of the deceaseds community. The application of these customs
is likely to favour the men because the women in pastoralist communities are rarely given the opportunity to
contribute to the succession process. Whereas we have various land reforms, the law of succession will continue
to demerit the gains of law reforms unless amended to fully comply with the Constitutional provisions on equality
and non-discrimination.
5.3.6 WOMENS RIGHTS IN LAND ADJUDICATION AND ADMINISTRATION

The recognition of both formal and community led processes in land administration shows an intention to
incorporate local institutions into the system and to take advantage of their legitimacy on the ground and gradually
bring them under the umbrella of the general law. Land adjudication and administration has been localized
through customary institutions; in effect combining the advantages of their legitimacy and accessibility to avoid a
situation where well-drafted inclusive legislation remains unapplied in rural areas.
Decentralization through customary institutions enhances womens rights in various ways such as ensuring that
the women who have over the years been empowered by various NGOs have sufficient knowledge and skills to
qualify for appointment into various positions within these institutions. This has seen more women being involved
in county and community land administrative institutions. The two thirds gender provision in the Constitution has
created an enabling environment for inclusion of women in decision making organs.
Recently, the Government has restructured the Land Control Boards in the country and many of them have had
to comply with the 2/3 Gender rule. Due to the awareness of this rule, many women have demanded positions
on the various Boards and have succeeded. There is still need for civic awareness to encourage more women to
present themselves for elective and appointive positions and generate public confidence in womens leadership.
5.3.7 WOMENS ACCESS TO JUSTICE IN LAND DISPUTES

Access to justice is a Constitutional guarantee for all but women are under-represented in both the formal and
informal justice mechanisms. Despite the obligation of government to provide this, NGOs are the largest providers
of legal aid support to women in Kenya. These projects often rely on pro bono work by lawyers and support of
paralegals trained by the NGOs who are much more accessible for the poor and vulnerable in rural areas.
However, these legal aid services were generally not regulated nor coordinated but Kenya has now enacted a
national legal aid framework.
The formal justice system of courts, tribunals and Constitutional institutions provide a crucial component of access
to justice in Kenya. But majority of Kenyans are increasingly sceptical of securing justice through court processes
as there has been loss of confidence in the judicial system due to the costs involved, poor case management, time-
consuming delays and allegations of corruption. The adversarial nature of the formal justice system is discouraging
for many women due to the likelihood that it will negatively affect family relations and ultimately the peaceful
enjoyment of land and property by successful litigants. For rural women access to the formal justice system is
riddled with obstacles including long travel distances to courts, high legal charges and court related costs which
24
majority of them cannot afford, language barriers and technicalities which limits understanding of procedures
hence not relatable by many of them.
Kenya has adopted legislation on alternative dispute resolution mechanisms, meaning that parties to a dispute
may either voluntarily or by order of a court resort to ADR mechanisms including community dispute resolution
mechanisms. Many disputes affecting womens land rights are resolved through mediation processes facilitated
by community-based traditional justice systems and cultural elders. By empowering community interventions
civil society actors have encouraged the inclusion of women into elders institutions which are periodically
called upon to decide on various land issues where customary law is to apply. Due to the diverse nature of
community practices, regularization in the mode of community led processes to mitigate approaches that may
disadvantage women. There is further need to ensure that community led processes are streamlined in terms of
their cognizance of the national values and principles set out in the Constitution that demand comprehensive
community involvement.
Developments in law have expanded the arrays of available mechanisms that women in Kenya can employ in the
enforcement of land rights. If effectively fully utilized, these may scale up access to justice strengthening womens
land rights.
5.3.8 WOMENS RIGHTS IN LARGE SCALE LAND BASED INVESTMENT

The dramatic trends in large acquisitions of land in developing countries by multinationals for agricultural
purposes as they seek to secure food security for industrialized nations cannot be ignored. The implications of
large-scale investments (commonly referred to as land grabbing) has far-reaching consequences on community
land rights and livelihoods along with tensions and struggles that land acquisitions engender as a result of their
impact on womens land tenure. Not consulted or otherwise engaged with in the course of negotiations and policy
discussions around these acquisitions, their interests are rarely factored into project designs. While men have
the option of going away to towns and cities in search of menial jobs, women remain in the villages around the
acquired land and suffer the consequences of restrictions on their access to basic resources.
In Kenya, excessive fragmentation of land and encroachment into marginal areas has resulted in low productivity
and severe land degradation. This has culminated in high competition for the dwindling resources resulting in
inflated prices of available land left and eruption of violent conflicts among families and communities.
Leasing of large tracts of land to investors should not happen without exhaustive consultations with the local
people, and in consideration of the need to ensure that these ventures are beneficial to these local communities
particularly paying special attention to womens land rights. Any investments in land should not jeopardize the
rights of women by displacing them and should ensure the land remain accessible as a source of livelihoods for
them. Even among civil society actors, there is limited information and lack of deliberate efforts to specifically
engage on issues of land grabbing as a womens land rights issue. There is an urgent need to empower and
organize women so that they can actively participate in community consultations on large scale investments
in land and better equip them to defend their interests in land by ensuring continued access, equitable benefit
sharing and fair compensation packages where applicable.
5.3.9 COMMITMENT TO GENDER EQUITY IN LAND
In terms of policy and legislation in Kenya, the state is no doubt committed to gender equity. However, this
commitment is not supported by concrete government steps through effective programming and service delivery.
Overlapping of mandates resulted in conflict and power struggles between the National Land Commission and
the Ministry of Lands. These wrangles affected the implementation of the laws and delayed regulatory framework
25
that was to operationalize Land rights generally. The Land Laws (Amendment) Act, 2016; which recently revised
the land laws, sets out regulations to distinguish the functions of the National Land Commission from those of
the Cabinet Secretary for Land. It is yet to be seen whether this will resolve the wrangles in the lands leadership.
Restructuring of the Lands registry has been slow and transactions still retain the old titling systems and forms
under the repealed laws.
Corruption and impunity in land dealings have seen preservation of the interests of upper class to the disadvantage
of others. Self-interest leadership has resulted in Land grabbing where women and children are often significantly
affected. Despite numerous media coverage of corruption and land grabbing, weak public institutions have failed
to safeguard land rights for those entitled. A good example is the failure by government to implement the Ndungu
Commission Reports recommendations which found rampant corruption and extensive historical injustices in
land and formed the basis of Land Reforms in Kenya.
Furthermore, though a necessary process, the adjudication of land, registration and titling processes do not
explicitly target women and there are no deliberate measures to guarantee women specifically benefit from this
process. There is no effective monitoring system and accordingly, the lands registry is unable to provide information
on the number of female beneficiaries or the overall impact of reforms within the lands sector on womens rights.
There is need for a collaborative approach by stakeholders in developing a mechanism to gather credible statistics
that will support the formulation and implementation of complementary interventions by partners to effectively
address womens inequitable access to land in Kenya.
5.4 STATE-SUPPORTED LAND ADJUDICATION ON LAND REFORMS
The program had no piloting phase and started operating nationally right from the beginning, likely missing
the opportunity of identifying potential gender issues that could have been addressed at an early stage of
implementation. Indeed, there is evidence to support titling and registration of land will strengthen security of
tenure for both men and women. It is hypothesized that as an immediate result of the supportive legal framework
on womens land rights, without a doubt the number of female beneficiaries of the government land-titling program
will be higher than previously. Nonetheless, in reality the number of female beneficiaries as compared to male
will still be significantly lower unless targeted measures are incorporated. However, there is a lack of quantitative
evidence to support these assumptions as currently the available data on this process is not gender-desegregated.
A number of studies have examined land tenure and the implementation of titling generally finding that women
may not fully participate in benefits if they do not share secure, formal, or customarily recognized property rights
over the land and/or housing. Some studies have revealed that in fact, women can lose their informal rights to land
when land ownership is formalized through the titling process. This occurs, for example, when titles are issued
in the name of the head of the household only (most often a male) and he chooses to sell the land without his
wifes knowledge or approval23. Titling projects with the best outcomes for women are those that involve women
from the beginning and ensuring programs are designed to addressing gender differences. Projects that focused
on women later in the process could also result in an increase in the number of women beneficiaries, but did not
show the same level of achievement as those that involved women from the beginning.
23
Study on women and property rights: project best practices, USAID, 2006
26
5.5 SUMMARY OF KEY GAPS IN THE ACTUALIZATION OF WOMEN LAND RIGHTS
Patriarchal social norms and customary practices result in interpretations which undermine legislative
victories protecting equal land rights for women particularly in succession of private land as well as
adjudication and governance of community land.
Limitation of matrimonial property to property only owned and acquired jointly limits womens interest
in property titled to their spouses. It remains very difficult for wives to prove and quantify non-monetary
contribution to matrimonial property.
Limited technical and financial capacity prevents women from fully benefiting from opportunities to
formalize interests in land.
Practical application of Spousal Consent is difficult in polygamous unions and ineffective in protecting the
interests of married women in property that does not fall under matrimonial property.
Absence of formal registration of most marriages limits womens claim of interest in matrimonial property
particularly in rural areas.
Failure to recognize spousal interest as an overriding interest in land eliminates safeguards for womens
unregistered interest and fails to remedy the current situation where most land is registered to men.
Lack of gender-specific provisions for women in community institutions weakens womens participation in
community processes of benefit sharing and compensation for land and land-based resources.
State-supported land adjudication processes do not explicitly target women and there are no deliberate
measures to guarantee women specifically benefit from this process.
Unmet demand for access to justice inhibits womens opportunities to claim their land rights.
27
CHAPTER 6: Recommendations
It is evident that the land reforms in Kenya were intended to strengthen womens land rights. On paper, we
have a progressive framework that promotes protection of womens land and property rights. However, legal
and policy reforms are not enough for women to fully realize their rights to own and use land. Progress towards
achieving equitable land relations though evident, is still quite slow as the government has yet to roll out
coordinated, concerted initiatives toward their implementation. Despite strong legal protections, women are
largely disadvantaged and continue to face structural and cultural obstacles preventing them from fully exploiting
the beneficial provisions in law. While great strides have been made particularly in access and use, significant
gender disparities still exist in control, ownership and decision making by women in relation to land.
Though six years into the land reforms process, the emerging implementation gaps and challenged need to be
addressed immediately in order to effectively ensure womens land rights are actualized in the long term. In
realizing the strong application of customary law in land administration and management, enhanced community
involvement is critical in formulating realistic and sustainable progress to the different issues impacting womens
land rights.
Strong leadership is required to influence real change within the male-dominated government and community
institutions. Existing opportunities to push the agenda of the rights of women in relation to land requires vigilance
and constant exposure nation-wide. Significant progress will be achieved through interlinked components and
complementary actions by various actors. The recent automation of land registration transactions provides a
timely opportunity to ensure government generates credible gender-desegregated data to monitor land ownership
in Kenya.
28
Gap Recommendation Intended Outcome Actors
1. Limited technical and financial capacity Targeted training on gender equal land Better understanding for effective Civil Society Organisations,
prevents women from fully benefiting rights, aimed at officials in the land sector, implementation of legal provisions Financial Institutions, Relevant
from opportunities to formalize interests formal and informal justice systems and strengthening womens land rights Government Ministries and
in land. financial institutions. Departments, Developmental
Partners, Policy Makers,
2. Patriarchal social norms and customary Nation-wide campaigns for the Increased number of women who Cultural elders Community
practices result in interpretations which recognitions and registration womens own and control land leaders, Civil Society, Judiciary
undermine legislative victories protecting rights to land, both separately and jointly
equal land rights for women particularly with spouses.
in succession of private land as well
as adjudication and governance of
community land.
3. Limitation of matrimonial property to A supportive legal environment to National Assembly, County

property only owned and acquired jointly strengthen the realization of land Assembly, NGEC
limits womens interest in property titled rights for married women
to their spouses. It remains very difficult
for wives to prove and quantify non-
monetary contribution to matrimonial
property.
4. Failure to recognize spousal interest as Advocate for the review of legal provisions National and County Assembly,
an overriding interest in land eliminates of the Succession Act, Matrimonial Relevant Government Ministries,
safeguards for womens unregistered Property Act and Land Laws (Amendment) Law Society of Kenya, NGEC
interest and fails to remedy the current Act that undermine womens land and
situation where most land is registered to property rights.
men.
5. Practical application of Spousal Consent Standardized application in land Law Society of Kenya, Relevant
is difficult in polygamous unions and transactions in favour of women Government Ministries, Financial
ineffective in protecting the interests of Institutions, Relevant Ministries
married women in property that does not and Departments, NGOs, Policy
fall under matrimonial property. Makers
29
6. Absence of formal registration of most Developing clear practice guidelines for Increased registration of Relevant Government Ministries
30
marriages limits womens claim of interest application in conveyance customary marriages and Departments, Civil Society
in matrimonial property particularly in Organisations, NGEC, KNCHR,
rural areas. County Governments and
Relevant CECs, Policy Makers
7. Lack of gender-specific provisions Stakeholder consultations to document Increased appointment of women Community leaders, Civil Society,
for women in community institutions recommendations on an accessible in government and community NGEC, KNCHR, NLC, Relevant
weakens womens participation in and affordable framework with clear land institutions Ministries, County Governments,
community processes of benefit sharing guidelines for registration of customary Relevant County Executive
and compensation for land and land- marriages. Committees
based resources.
8. State-supported land adjudication Improve the availability of information Strengthened monitoring Relevant Government Ministries,
processes do not explicitly target women to women, empower them and support of process and progress in Departments and Constitutional
and there are no deliberate measures to their involvement and participation in land registration to evaluate Commissions, Development
guarantee women specifically benefit community land processes. compliance in favour of women Partners
from this process. land rights
9. Unmet demand for access to justice Support presentation of gender specific Increased cases determined in NALEAP, Civil Society
inhibits womens opportunities to claim concerns and advocate for affirmative favour of women in formal and Organisations, Donor
their land rights. action for women in processes of land informal justice mechanisms Organisations
adjudication and titling.
Targeted availability and delivery of

standardized quality legal aid for women
to access both formal and informal
mechanisms for dispute resolution.
Resources
Publications
Anseeuw, W., Omar Ba, C., Lyebi-Mandjeck, O., & Mbaya, S. (2013). Large-scale land based investments in Africa:
Synthesis Report. The AUC-ECA-AfDB Land Policy Initiative. Retrieved November 2016, from http://repository.
uneca.org/bitstream/handle/10855/22923/b11552153.pdf?sequence=1
ARD, Inc. (2006). Study on women and property rights: project best practices. Burlington, VT 05401: ARD, Inc.
for United States Agency for International Development. Retrieved November 2016, from http://pdf.usaid.gov/
pdf_docs/Pnadj420.pdf
Bertoli, E. M. (2014). Customary Law and the Limits of Female Land Tenure Reform in Kenya Senior
Theses. Hartford: Trinity College. Retrieved from http://digitalrepository.trincoll.edu/cgi/viewcontent.
cgi?article=1440&context=theses
Boche, M., Neyman, Y., Krebber, I., Wehrmann, B., Vhugen, D., Windfuhr, M., . . . Gerhardus, B. (2015). Analytical
Framework for Land-Based Investments in African Agriculture: Due Diligence and Risk Management for Land-
Based Investments in Agriculture. Cape Town, South Africa: New Alliance for Food Security & Nutrition and
Grow Africa. Retrieved December 1, 2016, from https://new-alliance.org/sites/default/files/resources/Analytical-
framework-for-land-based-investments-in-African-agriculture_0.pdf
Bruce, J. (2009). Kenya Land Policy: Analysis and Recommendations. Burlington: ARD, Inc for United States
Agency for International Development.
Doshi, M. (2012). The Land Laws of Kenya: A Summary of the Changes. Nairobi Kenya: Anjarwalla & Khanna.
Retrieved November 2016, from http://estates.uonbi.ac.ke/sites/default/files/centraladmin/estates/Summary-of-
the-Land-Laws-Anjarwalla-Khanna-October-2012.pdf.pdf
Hansen, T. O., Limondin, K., & Kerrigan, F. (2011). Access to Justice and Legal Aid in East Africa: A comparison of
the legal aid schemes used in the region and the level of cooperation and coordination between the various actors.
The Danish Institute for Human Rights (DIHR). Retrieved November 2016, from http://www.humanrights.dk/files/
media/billeder/udgivelser/legal_aid_east_africa_dec_2011_dihr_study_final.pdf
International Land Coalition, CIRAD and Mokoro. (2011). Gendered impacts of commercial pressures on land.
The International Land Coalition. doi:ISBN 978-92-95093-22-5
Manji, A. (2015, August 1). Whose land is it Anyway? The Failure of Land Law refore in Kenya. Retrieved November
2016, from Africa Research Institute: http://www.africaresearchinstitute.org/newsite/publications/whose-land-is-
it-anyway/
National Council for Law Reporting (Kenya Law). (2016). Kenya Law Reports: Cases and Statutes. National Council
for Law Reporting (Kenya Law).
Njeri, M. (n.d.). Womens power through the Constitution : Our Constitution, Our Life!! Nairobi, Kenya: African
Woman and Child Feature Service.
OBrien, E. (2011). Irregular and illegal land acquisition by Kenyas elites: Trends, processes, and impacts of
Kenyas land-grabbing phenomenon. The International Land Coalition. doi:ISBN 978-92-95093-29-4
Rachier, A. (2016). Spousal Consent in Conveyancing Practice in Kenya.
Landesa, Center for Womens Land Rights (2016). Supplementary Information Concerning Womens Land Rights in
Kenya Submitted to the 57 Session (22 Feb 2016 - 04 Mar 2016) of the Committee on Economic, Social, and
Cultural Rights.
31
Acts of Parliament and laws
The National Land Commission Act, 2012

Land Registration Act, 2012
Land Amendment Act No.28 of 2016
Mining Act, No.12 of 2016
The Environment and Land Court Act, 2011
Environmental Management and Coordination Act No.8 of 1999
Legal Aid Act 2016
Community Land Act, No. 27 of 2016
Constitution of Kenya, 2010
Land (Group Representatives) Act, cap. 287, 2010
Land Adjudication Act, cap. 284, 2016
Land Consolidation Act, cap. 283, 2012
Land Disputes Tribunal Act, cap. 303A
Marriage Act, No. 4 of 2014
Matrimonial Property Act, No. 49 of 2013
Succession Act, cap.160, revised 2015 [2012]
Trust Land Act, cap. 288, 2012
32

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A Review of womens property rights as a

result of land reform in kenya:

P.O. BOX 2177-20100, Nakuru | TEL: +254 51 221 0398

The publication remains the sole property of Kenya Land Alliance

Designed & Printed By: Myner Logistics Ltd

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HIV Human Immunodeficiency Virus

ICCPR International Convention on Civil and Political Rights

ICESCR International Covenant on Economic, Social & Cultural Rights

KLA Kenya Land Alliance

LRA Land Registration Act

NGEC National Gender and Equality Commission

NGO Non-Government Organization

NLC National Land Commission

NLP National Land Policy

NLUP National Land Use Policy

NUDP National Urban Development Policy

1.1.2: REGIONAL CONTEXT

Istanbul Declaration on Human Settlements (esp. Par.7) III Commitments D

1.1.3. Purpose and objectives of the review report

2.2: SOURCE OF REVIEWED MATERIALS

2.3: DESK REVIEW PROCESS

3.1: INTERNATIONAL TREATIES

3.2.1: NATIONAL LAND POLICY4

Sessional Paper No. 3 of 2009

3.2.3.2: THE LAND ACT NO. 6 OF 2012

3.2.3.3: THE LAND REGISTRATION ACT NO 3 OF 2012

3.2.3.4: THE LAND LAWS (AMENDMENT) ACT NO. 28 OF 2016

3.2.3.6: THE MATRIMONIAL PROPERTY ACT NO. 49 OF 2013

3.2.3.8: LAW OF SUCCESSION, CHAPTER 160, REVISED 2015 [2012]

3.2.4: WHAT IS PENDING

3.2.4.2: DRAFT NATIONAL URBAN DEVELOPMENT POLICY OF 2012

4.1.1: DISCRIMINATION OF WOMEN IN LAND RIGHTS:

4.1.2: MARRIAGE AND PROPERTY RIGHTS:

4.1.3: INHERITANCE RIGHTS:

4.1.4: REGISTRATION AND TITLING

4.1.6: WOMENS INVOLVEMENT:

4.1.7: DISPUTE RESOLUTION:

4.2: RECENT COURT DECISIONS TOUCHING ON WOMENS LAND RIGHTS

4.3: GAPS IN EXISTING LAWS

4.3.1: DISCRIMINATION OF WOMEN IN LAND RIGHTS:

4.3.3: INHERITANCE RIGHTS:

4.3.4: REGISTRATION AND TITLING

4.3.5: LAND BASED RESOURCES:

5.2: DISCUSSION ON PENDING LEGISLATION

5.3.1 INFLUENCE OF CULTURE ON WOMENS RIGHTS

5.3.2 OWNERSHIP AND CONTROL OF PROPERTY BY MARRIED WOMEN

5.3.3 SPOUSAL CONSENT IN LAND TRANSACTIONS

5.3.4 LAND RIGHTS OF DISADVANTAGED AND VULNERABLE WOMEN

5.3.5 WOMENS INHERITANCE RIGHTS

5.3.6 WOMENS RIGHTS IN LAND ADJUDICATION AND ADMINISTRATION

5.3.7 WOMENS ACCESS TO JUSTICE IN LAND DISPUTES

5.3.8 WOMENS RIGHTS IN LARGE SCALE LAND BASED INVESTMENT

5.4 STATE-SUPPORTED LAND ADJUDICATION ON LAND REFORMS

3. Limitation of matrimonial property to A supportive legal environment to National Assembly, County

Targeted availability and delivery of

Rachier, A. (2016). Spousal Consent in Conveyancing Practice in Kenya.

The National Land Commission Act, 2012

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