Kenya: Why Grandchildren Can't Inherit Their Grandparents Property

19 September 2019

Are children born of women who inherit land from their parents entitled to the property?

This is the dilemma Nicholas Ouma Obonyo, a former jailbird, finds himself in after realising that his mother sold or reallocated all the land she inherited from her parents.

Worse for Mr Obonyo, 42, is the fact that his ancestral home doesn't have much to offer him. His eldest brother owns the quarter acre that was left of his father's land.

CHANGE OWNERSHIP

"Nimejipata pagumu. Sina mbele wala nyuma. (I have found myself in a very difficult situation. I am cornered)," said Mr Obonyo.

Prior to his arrest in 2000, he claimed, his maternal grandmother gave him a parcel of land which he used to till for subsistence.

His mother inherited the land, in Siaya County, after her parents died, and proceeded to sell and reallocate it as she wished.

Then Mr Obonyo was cooling his heels at Kamiti Maximum Security Prison in Nairobi where he had been sentenced to death on January 17, 2001, for robbery with violence.

"I was imprisoned before changing ownership of the land into my name. My mother sold or gave out all the land. Maybe she assumed that I would never leave prison," said Mr Obonyo who left jail on July 16, after serving 19 years.

He said that his grandmother gave him the land because he stayed with her in her sunset years. The current occupants are relatives who bought the land from his mother.

"If the Constitution allows women to inherit land where they were born, do their children have the right to inherit such land?" Mr Obonyo asked.

SPECIAL NEEDS

His father died while he was in prison. He returned from jail to learn that his two children had died and his wife had left. His semi-permanent house collapsed years ago. "I want my mother to give me a small part of the land she got from her parents because I am one of her children. I don't have anything. I want to build a home and start my life afresh," he said.

However, if the court's recent rulings are anything to go by, Mr Obonyo's goose is cooked. In April this year, for instance, High Court Judge William Musyoka held that grandchildren can only inherit their grandparents' property through their parents.

"The only time grandchildren inherit directly from their grandparents is when the grandchildren's own parents are dead. The grandchildren step into the shoes of their parents and take directly the share that ought to have gone to the said parents," Justice Musyoka ruled.

Family lawyer Judy Thongori said that once one is educated by the parents, one has no right to their property.

The person is supposed to be able to fend for himself. "Unless the child is a special needs child; such as one with mental of physical health issues, or a minor, they have no right to claim their parents' property. The only persons who can claim property from each other are parents (spousal claims).

ARCHAIC PRACTICES

"The wife can ask the husband for division of matrimonial property and vice versa. Children have no right to property until their parents die," said Ms Thongori.

If parents wish to give some of their property to some siblings, there is nothing the other children can do.

However, when the parents die the child who was given property will not benefit from more until the rest have received their share.

According to the law, children can also not stop parents from selling their land.

Family lawyer Danstan Omari said that if grandparents intend to give their grandchild land, they have to indicate the same in a written will.

"Inheritance is within the family and anybody outside the family can only inherit through a will. Nothing stops anybody who has excess (property) from giving something small to other people," said Mr Omari. Further, if a will is meant to disinherit rightful beneficiaries, it can be challenged and even declared null and void.

Archaic cultural practices have for long denied women their parents' share of property.

LEGAL TUSSLE

Recent court rulings, however, have turned this perception on its head. A study by the United Nations estimates that less than seven per cent of Kenyan women are registered land owners compared with about 30 per cent of men.

Article 40 of the Kenyan Constitution gives men and women equal rights to land ownership.

Earlier in the year, High Court Judge Mumbi Ngugi ruled that six sisters be given part of their father's estate after a lengthy legal tussle.

Deputy Chief Land Registrar Pauline Muriithi handed the women land title deeds at Cheborgei in Bureti, Kericho County, on April 13.

Each of the beneficiaries got a five-acre piece of land out of the family's 42 acres.

The ruling marked a historic moment in the Kipsigis community where married women are traditionally denied a share of their parents' estate.

Land Cabinet Secretary Farida Karoney, in a speech read on her behalf, said the ministry was committed to the application of the law on land ownership and inheritance to enhance the plight of women.

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