Of widows left at the mercy of in-laws, courts
Perennial battles over property in Kenya have raised a crucial question: are current laws adequate in protecting women who have lost their husbands through death or divorce?
Betty Muindi and Sandra Wekesa
“Mummy, when is daddy coming home from work?” This is a question that breaks Jane Kendi’s heart anytime she hears her three-year-old son’s melancholic voice.
It hasn’t been easy for Kendi since she lost her husband a year ago. But great memories remind her of the love she shared with her late husband, David Ombongi Mogikoyo.
His last words to her were, “I will see you in the evening,” Kendi still wishes those words could indeed come true.
They had met in 2013 in Nairobi through a mutual friend. Their love blossomed and they legalised their union at the Attorney General’s Office in 2016 and moved to Turkana where they both worked.
All was well until that chilly Friday morning of June 7, last year, when her husband left for work as usual.
Hours later, she received a phone call— the message: her husband was no more. She later learnt he had been involved in an accident along Lodwar-Kakuma road. “I couldn’t believe it.
Widowed at 26? How could that happen? I was heartbroken,” she says.
A day after, her in-laws travelled to Turkana for funeral arrangements. They promised to stick with her through the hard times. But they couldn’t keep their promise.
They began questioning her about their cars, land and any other property they owned. They even sought to know who was registered as the owner of the properties.
Deserted and blamed
She innocently told them everything. She trusted them. “They promised to take care of me. As a young widow, my husband’s death hit me hard. All I ever needed was support from the family,” she says.
However, the unexpected happened. Her in-laws moved to court to have her excluded from funeral arrangements.
The most outrageous claim was that she had a hand in the road accident that resulted to the unfortunate death.
It took a month in court to decide the fate of Kendi and her in-laws, which allowed her to bury her husband. He was buried at his ancestral home in Kisii.
“I remember on the day of his funeral, I was so bitter— can you imagine going to your own home, guarded by police because of the thought that your family may attempt to harm you?” she poses.
Kendi and her in-laws were also involved in an out-of-court case, which involved how her late husband’s property— two cars, a lorry, land and unnamed amount of money would be shared.
Over the last decade, Kenya has enacted laws to ensure equality of spouses in marriage and equitable distribution of matrimonial property.
Yet, according to Human Rights Watch report, women face many challenges in acquiring property in their own name or jointly with a spouse at dissolution of their marriage after divorce, or on the death of their husband.
The research found that although the law is clear that monetary and non-monetary contributions should be considered in sharing property at the end of a marriage, it does little to clarify what would constitute proof of contribution, and how such contributions should influence how matrimonial property is shared.
As a result of this lack of clarity, some judges have asked spouses to produce receipts as proof of contribution, an implausible request that may discriminate against some women whose principal contribution was non-monetary—not to mention the difficulties of keeping receipts over years.
Easter Okech, executive director and programmes coordinator of Kenya Female Advisory Organisation (Kefeado) says patriarchal ideologies in Africa including Kenya give shape to family life and defines it in terms of a bread winning husband and a domesticated wife or rather, a housewife despite some women substantially contributing to household income.
Consequently, men are attributed with greater economic power in determining how the family income and resources should be allocated.
“While some men prepare wills for any eventuality, many women find themselves at the mercy of in-laws. It is important that men write wills even if it means updating it from time to time instead of leaving people in a muddle,” she says.
Based on interviews with over 64 individuals, including women who are separated, divorced, or widowed, the report examined how the interplay of positive, but ambiguous laws, antiquated laws, and discriminatory social and cultural norms impede the claims over matrimonial property of married, divorced, separated, and widowed women in Kenya.
Human Rights Watch also reviewed and analysed data from 56 divorce and matrimonial property division case files with a final judgement between 2014–2019 from courts in Kakamega and Kilifi counties.
“We chose Kakamega and Kilifi counties as our case study because they were ranked in the top five counties with the highest rates of divorce and separation in 2008 by the Kenyan Bureau of Statistics.
Both also reflect unique ethnic and religious aspects with similar distinctions such as dowry, custody of children, traditional practices that discriminate against,” explained the report.
Discriminatory practices
For most women seeking to leave a marriage, the fear of intimidation from their husband or his relatives and traditional dispute resolution that reinforces discrimination means they leave with little more than a few personal belongings they can physically carry with them.
In most cases, according to traditional elders Human Rights Watch interviewed, the elders enable the woman to remove her personal belongings from the home, but are clear that she cannot be given a share of the house or land.
Okech advises women to be aware of property owned by their spouses, “Let us face it, every woman is a potential widow.
You should have documents that tell the story of what has happened in your marriage financially,” she explains.
Aside from discriminatory customary practices, the report further stated that women experience multiple barriers in accessing justice through the courts to claim matrimonial property at dissolution of marriage.
Institutional barriers
Major obstacles such as minimal awareness of rights, inadequate access to relevant information, costs of legal proceedings, and long distances to courts hinder women from claiming their rights.
On top of this, women face delays related to overlaps or confusion over which court has jurisdiction to hear matrimonial property causes, the challenge of transmitting information across the justice chain including transferring files from the lower (magistrate’s) to the High Court, and difficulties associated with collecting required evidence.
Other difficulties, include inadequate human resource capacity in alternative dispute resolution mechanisms, such as mediation mandated by the court, further negatively impact the ability of women to access justice.
Diana Kamande, founder of Come Together Widows and Orphans Organisation (CTWOO) believes that widows are safe when they understand the law and how they are protected from it.
“This is why we are offering paralegal training to widows who in turn help create awareness in their respective communities,” she says.
Widows, she says, must learn to keep important documents such as death notifications, death certificate and deceased’s ID card.
When a case is filed in court, one should appear in person. “As a widow, don’t send someone to represent you in court.
Appear, listen and if you don’t understand, ask for interpretation. Have copies of important documents and don’t give original copies to anybody,” she insists.
