"Our father died and my brothers say daughters don't get land." We hear this often. Under Kenyan law today, the answer is clear: daughters, married or unmarried, have the same right to inherit as sons.
What the law says. Article 27 of the Constitution guarantees equality and freedom from discrimination, including on the basis of sex and marital status. Article 60 calls for the elimination of gender discrimination in law, customs and practices related to land. The Law of Succession Act treats a deceased person's children as a group: where a person dies without a will, the estate is shared among the surviving spouse and the children, and Kenyan courts have repeatedly held that this includes daughters on equal terms with sons.
Customary practices that exclude women from inheriting cannot override the Constitution.
What about adopted children? A child legally adopted under the Children Act is treated as a child of the adoptive parents for inheritance purposes. Children who were taken in informally but never legally adopted may still be able to claim as dependants, but their case is harder to prove.
How an estate is shared
Before anyone can transfer land or withdraw money from a deceased person's account, someone must get a grant of representation from the court:
- letters of administration if there was no will;
- a grant of probate if there was a will.
Usually the family gets a letter from the area chief listing the deceased's survivors, then files the petition in court. The court publishes the application in the Kenya Gazette so that anyone with an interest can object. Every child, including daughters, should be listed. If you were left out, you can object, or ask the court to revoke a grant obtained by hiding information.
What to do if you are being excluded
- Get a copy of the death certificate and, if possible, a search of the land title.
- Ask the chief for a copy of the letter listing survivors.
- Check whether a succession case has been filed at the High Court or Magistrate's Court where the deceased lived.
- Act quickly. Once land is transferred, undoing it is harder.
Succession cases can be complex. A free legal aid clinic or an advocate can help you file an objection. Ask Haki can help you understand the steps first.