16 December 2017

Kenya: Ruling Allowing Six Women to Inherit Land Ignites Controversy

Photo: Charlie Pye-Smith/ILRI
(file photo).

A decision by a judge in Kericho to grant six married women a chance to inherit their father's land has stirred an uproar among elders in parts of the Rift Valley.

Justice Mumbi Ngugi on July 24, in relation to the estate of the Joel Cheruiyot Korir, who died in 2012, allowed the six women to inherit the property left behind by their father.

However, elders have argued that the decision set a bad precedent that goes against the Kipsigis culture.

Myoot Kipsigis Council of Elders official Paul Kiget wondered how six daughters -- some married for about 50 years -- could go back to claim land at their parental homes.

"For a woman who has been married off under Kipsigis customary law and had dowry paid, to come back home and claim property she invites a curse upon their children.

"Once married they will now be advancing developments of the clan they are married to and will not be allowed to rob their father's clan," said Mr Kiget.

The court decision opened a new battle over Mr Korir's 17-hectare piece of land in Cheborgei, Bureti Sub-County, pitting his two sons -- Joshua Kiprono and Samwel Kiplangat -- against their six sisters, led by Rachel Korir.

LAND

According to Mr Kiprono, Ms Korir, who left her matrimonial home under unclear circumstances, had moved to court on July 23, 2012, challenging a will in which their father had indicated that his two sons should share the land equally. Ms Korir moved to court after learning that the brothers had sought the services of a surveyor to formally undertake the sub-division of the land.

"She claimed that our father was not in his right state of mind at the time of writing the will and asked to be apportioned some land together with her other sisters who all have been married for nearly 50 years and are all above 60 years," said Mr Kiprono.

He said their father had written the will fully aware of the provisions of the Kipsigis customary law which grants inheritance to sons. The customary law also grants some land to daughters under special circumstances especially those who are unmarried or divorced. However, at the time of their father's death, the women were all married.

"We were all taken aback when they returned to claim the land when there were no special circumstances to warrant their claim," he said.

DISINHERIT

Ms Korir asked Justice Ngugi to invalidate her father's will on grounds that he was infirm and senile when he wrote it and, therefore, was incapable of understanding the action of distributing the estate. She said the mode of distribution would also disinherit her from the land she had lived on since 1984.

In a rejoinder, the brother said Ms Korir had failed to provide medical evidence to prove her claims and that she had been habitually disrespectful to their father. "After selling off a 52-acre piece of land that our father had secured for her and using up the money with her husband, Rachel came home and was still given land to cultivate. However, in July 1999, she had our father and elder brother Samwel arrested just because his cows had strayed into her maize farm," he said.

In the ruling delivered on July 24, Justice Ngugi said the law was not on Mr Kiprono's side and ordered that the estate be shared equally among the eight children, the others being Sarah Rotich, 73, Elizabeth Sang, 71, Alice Korir, 69, Jane Ruto, 65 and Esther Korir, 61.

KIPSIGIS CUSTOMS

Elders have now said according to Kipsigis customs, girls have no clan until they are married when they join their husband's.

Mr Joseph Kauria, an elder, said in case of a divorce, a woman comes back home and the dowry is returned to the husband as a sign of severing of ties. Only then will the father give his daughter land, but that does not have to be an equal portion with that of the brothers.

"A girl who does not get married at all is given land but not equal to that of her brothers. For those married, their parents would chip in when necessary to, for instance, pay for their medication in case of prolonged or expensive treatment," said Mr Kauria.

According to the elders, Justice Ngugi had in her ruling, dwelt on the succession laws while disregarding the cultural aspects. The elders want the case set aside as a mistrial because of the cultural implications and the precedent it will set, not just among the Kipsigis but countrywide.

The elders council's chairman Bishop (rtd) Paul Leleito said the will should have been followed to avert the unnecessary clash between the customary and other laws.

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