• The fights over estates left behind by prominent individuals have raised concerns on whether they inform their families of their wills when they are still alive
• Lack of commitment to women’s equality leaves women unable to provide for themselves and their children
They both say the vows, 'For better for worse, till death do us part'. She lives her dream, marrying the love of her life and building a life together. But everything changes upon his demise and the arrival of 'the other wife'.
This has become a nightmare for many women in Kenya, who, while grappling with the loss of their spouses, have to deal with a second wife, especially when they come to claim shares from the inheritance. The matter is compounded if the husband died intestate (without a will).
As much as the first wife, the second wife also has to ensure she acquires what the husband left for her and her children’s sake.
Mary* (not her real name) had to fight for her late husband's properties for 20 years.
She recalls how life was sweet with her late husband, whom she met in high school back in the 1990s. Unfortunately, he died in 1997.
“I met my late husband Peter in our rural home in Githiga, Kiambu county, back in 1990. I was in high school then. We got married two years later and got our first child in 1995,” Mary told the Star.
“He was a businessman and the best thing a woman could ever ask for. I was so lucky to have him. Unfortunately, two years after giving birth to our first child, he was shot dead by unknown people on his way home, and that was the beginning of my nightmare.”
After laying her husband to rest, a woman who claimed to be Peter’s wife showed up and wanted a piece of property that Peter left.
To her surprise, Peter had a previous family and Mary was actually the second wife.
“I learned that my late husband was married and had two grown children (girls). I never suspected anything of the sort would happen," she said.
"He never talked about it. Now the lady shows up after my husband is dead, claiming a piece of the property.”
Mary was forced to take the case to court, which lasted 20 years, and finally was left with a bigger share of the property since she was considered as Peter’s legal wife, while the ‘other wife’ attained a small piece of property and the case was closed.
Mary now lives a happy and peaceful life with her only child.
WHAT THE LAW SAYS
A Nairobi lawyer, who sought anonymity, said, “Where a person who dies without a will has married, more than once under any system of law permitting polygamy, his personal and household effects and the residue of the net estate shall, in the first instance, be divided among the houses according to the number of children in each house.”
Adding, “But also, adding any wife surviving him as an additional unit to the number of children. So, for example, if he had two wives with three kids each, then the estate would be divided among all eight of them.”
The Court of Appeal has dealt with the issue of inheritance at length. It came up with the principle that there should be no discrimination on the girl child and that they are equally entitled to inherit their father’s estate.
In the case of Mary Rono vs Jane Rono and another (2005), the Court of Appeal, in setting aside the distribution of the estate in the case, ordered that the estate be shared out equally between the sons and daughters of the deceased.
No distinction should be made between the sons on the one hand and the daughters on the other. The court also applied international law provisions in determining the issue of discrimination.
It is now easier to apply the International Law provisions based on Article 2 (5) and (6) of the Constitution, which provides:
“(5) The general rules of international law shall form part of the law of Kenya.
“(6) Any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution.”
There are cases whereby women get resentful and end up killing their spouse, the second wife or even themselves.
In February, a 27-year-old woman from Kakamega county committed suicide using a rope after she discovered that her husband had married another wife.
Also in February, a woman from Kajiado county murdered her husband after he revealed to her that he had plans to marry another woman. His body was found lying in a pool of blood.
Lobby group Human Rights Watch says the Kenyan government has human rights obligations to ensure women’s equal rights in marriage and also during divorce.
This includes taking steps to ensure equality in ownership, control and distribution of matrimonial property.
Ownership of matrimonial property is directly related to women’s rights to land and other productive resources.
The rights group says the lack of commitment to women’s equality leaves women unable to provide for themselves and their children. They end up trapped in abusive relationships and with increased exposure to the risk of getting HIV.
In the Matrimonial Act 2013, matrimonial property acquired by the man and the first wife shall be retained equally by the man and the first wife only, if the property was acquired before the man married another wife.
Matrimonial property means the matrimonial home or homes, household goods and effects in the matrimonial home or homes, or any other immovable and movable property jointly owned and acquired during the subsistence of the marriage.
Property acquired by the man after the man marries another wife shall be regarded as owned by the man and the wives, taking into account any contributions made by the man and each of the wives.
Despite that, where it is clear by agreement of the parties that a wife shall have her matrimonial property with the husband separate from that of the other wives, then any such wife shall own that matrimonial property equally with the husband without the participation of the other wife or wives.
Provided that, if the surviving spouse is a widow, which interest shall determine upon her remarriage to any person. If she gets married again, then she essentially loses this benefit.
A surviving spouse shall, during the continuation of the life interest provided above, have a power of appointment of all or any part of the capital of the net estate by way of gift.
WHERE THERE IS NO WILL...
The fights over estates left behind by prominent individuals have raised concerns on whether they inform their families of their wills when they are still alive.
One of the four women left behind by slain businessman Jacob Juma is also fighting for her share of his multimillion shilling estate.
The outspoken government critic died after being shot multiple times along the Southern bypass in Nairobi, when he was on his way to his Karen home on May 5, 2016.
Lydia Tabuke says she and her two children were excluded from the mode of distribution and the list of beneficiaries of the estate.
Tabuke wants the court to subject the children she had with Juma to a DNA test.
A recent story from the Nation newspaper narrates how, 44 years after JM Kariuki, former Nyandarua MP was murdered, his three wives, Doris Nyambura, Esther Mwikali and Terry Wanjiku are still fighting over his assets.
The former MP had assets worth Sh4 billion, and with no will written, his first wife Terry was the one who filed the case.
She ended up acquiring the largest assets, with 250 acres in Ol Kalau, 180.5 acres in their matrimonial home in Gilgil and land that hosted Seoul restaurant off Ngong Road.
Esther Mwikali got 25o acres in Riverside Farm, while Dorris got 118 acres.
Terry and Esther also got 35 per cent each of the 811-acre farm in Gilgil, while Dorris was given the remaining 30 per cent.
The property tussle by the family is among a string of high-profile cases lately, including the Koinanges, the Karumes and the Michukis.