DISTRIBUTION OF PROPERTY IN A GENDER-NEUTRAL MANNER

INTRODUCTION

In a recent case namely Ripples International v Attorney General & another; FIDA (Interested Party) (Constitutional Petition E017 of 2021) [2022] KEHC 13210 (KLR), it was held that sections 35(1)(b), 36(1)(b) and 39(1)(a) and (b) of the Law of Succession Act were declared unconstitutional for being restrictive of the women and female child’s right to inherit in equal measure and circumstances as the men and male child.

The petitioner challenged the constitutionality of sections 32, 35(1)(b), 36(1)(b), 39(1)(a), and (b) of the Law of Succession Act. The petitioner contended that the exceptions created by sections 32 and 33 of the Act were problematic since they denied the people of Kenya, especially women and girl child of Kenya the right to property, food, shelter, and specifically gender equality and even equal protection from adverse customary practices such a Female Genital Mutilation(FGM), early marriages among others.

The honorable court opined that:-

• The wording of sections 35(1)(b), 36(1)(b), and 39(1)(a) and (b) of the Act were restrictive of the women and female child’s right to inherit in equal measure and circumstances as the men and male child. Sections 35(1)(b) and 36(1)(b) restricted a widow’s life interest in the property of her deceased spouse when she remarried, unlike the widower who remarried. This restricted her inheritance rights just because she remarried.
• Section 39(1)(a) and (b) gave priority to the father ahead of the mother over the property of a child who died intestate, unmarried, and childless.
• The court did not find that evidence had been adduced as to discrimination of women under the customs and practices of the peoples in the areas set out in section 33 of the Law of Succession Act with regard to the inheritance matters relating to the property set out in section 32 and therefore the court could not interfere with those provisions of the law.
• Sections 35, 36, and 39 of the Law of Succession Act had to be interpreted in such a manner that gave life to the impact of equality of women and men with regard to the protections and benefits accruing under those sections.

ORDERS OF THE COURT

• Section 35(1)(b) of the Law of Succession Act was declared unconstitutional.
• Section 36(1)(b) of the Law of Succession Act was declared unconstitutional.
• Sections 39(1)(a) and (b) of the Law of Succession Act were unconstitutional as they failed to give both father and mother equal priority in the inheritance of their child’s property that died intestate and had no surviving wife or children.
• Sections 32 and 33 of the Law of Succession Act, were not declared unconstitutional.
• The prayers directing the Attorney General and Speaker of the National Assembly to take measures for requisite legislative reforms and to produce quarterly progress reports thereon were declined.

CONCLUSION

Article 27(4) of the Constitution,2010 prohibited discrimination on the grounds of sex and marital status among other grounds as opposed to the repealed Constitution,1963 which allowed discrimination. Article 45(3) of the Constitution recognized the equality of men and women in a marriage. It should be known that both genders are equal and no amount of discrimination can change that fact. We are all capable of enriching this earth with our endowed gifts. The Petition was partly allowed with no orders as to costs because it was a family matter.