MOUNT KENYA UNIVERSITY

SCHOOL OF LAW
PARKLANDS
COURSE : GENDER AND THE LAW

COURSE CODE : BLW 3106

CLASS : GROUP B

COURSE CO-ORDINATOR : NELLY WAMAITHA

GROUP NO. 6
NAME REGISTRATION NO.
1. BONIFACE MAKAU BLAW/56331/2016
2. OKISAI IVAN BLAW/54931/2016
3. MARYANNE KIHIKA BLAW/55374/2016
4. EUGENE NYAMBARIRO BLAW/55534/2016
5. THORNE WEKESA BLAW/54604/2016
6. YVONNE MUTINDI BLAW/54272/2016
7. SHADRACH OUMA BLAW/55838/2016
8. PENNINAH ALINGO BLAW/55654/2016
9. TIMOTHY OKETCH BLAW/55173/2016
10. MARTIN OCHIENG BLAW/54198/2016
11. DENNIS MWIRIGI BLAW/54850/2016
 A. INTERNATIONAL PERSPECTIVE ON GENDER AND FAMILY LAW
A family may refer to:
 Man and woman who share a common household
 Persons who share blood relations
 Persons who share a household
 Members of a household (parents and children and even lodgers and servants)
Legally family is restricted; one pre-requisite is a marriage ceremony and restricts to be
terminated by the legal status. The purpose of family in regards to gender is to define status
between the parties. In law a family is created when families enter into a legally recognized
marriage. The family is said to have developed along the four main stages:
1. Consanguine family- it based on group marriages and so long as you belonged to the
same generation you could have sexual relations.

2. Punuluan family- it was based on group marriages also and brother and sister were
excluded from sexual relations.

3. Pairing family- this involved one man who lived with one woman but the relationship is
such that polygamy and occasional infidelity on the part of the man is permissible,
however the woman was expected to be strictly faithful and incase of adultery on her part
she would be strictly punished. This is a clear indication that women in regards to gender
required them to be submissive in the family, while the father was authoritarian.

4. Monogamous family- this kind of family required that conjugal relations are extended to
the wife because it is not only the wife who has to be faithful but the man as well; it
entailed one wife and one-man institution of marriage.
In Kenya, it is common and accepted practice for unmarried couples to live together as husband
and wife. Some of these couples never contract a legally binding marriage. There is no law
in Kenya that legitimizes cohabitation unions. Accordingly, these unions are not
formally recognized in Kenya, the clause that was to recognize cohabitation was locked out by
parliament. The essence of recognized marriage is to determine matrimonial cases if they arise.
International covenant instruments, tended to protect the family, Article 16 of the Universal
Declaration of Human Rights states:

(1) Men and women of full age, without any limitation due to race, nationality or religion, have
the right to marry and to found a family. They are entitled to equal rights as to marriage,
during marriage and at its dissolution.
(2) Marriage shall be entered into only with the free and full consent of the intending spouses.

(3) The family is the natural and fundamental group unit of society and is entitled to protection
by society and the State.1
TRANSGENDER
Transgender people are people who have a gender identity or gender expression that differs from
their assigned sex at birth. Some transgender people identify as transsexual if they desire medical
assistance to transition from one sex to another.
The Supreme Court decision in the US in Obergefell v Hodges established that equal protection
requires all jurisdictions to recognize same-sex marriages, giving transgender people the right to
marry regardless of whether their partners are legally considered to be same-sex or opposite-sex.

B. REGIONAL PERSPECTIVE ON GENDER AND FAMILY LAW

Regional convention definition in regards to gender and family is provided for by the African
Charter On Human and People’s Right which states under Article 18:-

(1) The family shall be the natural unit and basis of society. It shall be protected by the State
which shall take care of its physical health and moral.

(2) The State shall have the duty to assist the family which is the custodian of morals and
traditional values recognized by the community.
(2) The State shall ensure the elimination of every discrimination against women and also
censure the protection of the rights of the woman and the child as stipulated in international
declarations and conventions.

It’s worth noting that Article 18 of the African charter on Human and People’s Right which
seeks to protect the family as an institution and the state shall protect the family however the
article also ensures that women are not discriminated upon and protected. The question that put
the state at a hard position is in cases of gender violence, against a woman, the question is will
the state protect the woman by prosecuting the man or shall the state safeguard the family as an
institution. Although declarations maybe ratified by states there are not binding upon those states
unlike covenants which are. Human rights language and instruments perceive women to be more
victims as compared to men, but the overriding position is that men are also victims of the same.

1
www.Un.org accessed on 16th November 21, 2016
Debate has occurred throughout Africa over proposal to legalize same- sex marriage as well as
civil unions. Currently, South Africa is the only African Country that legally recognizes same-
sex marriage2.

C. KENYAN PERSPECTIVE ON GENDER AND FAMILY

A brief overview of marriage, divorce, succession, child custody and maintenance and
matrimonial property is highlighted below:-

1. MARRIAGE
Article 45 of the Constitution of Kenya 2010, recognizes the institution of marriage and it
entails, union between a man and woman of the opposite sex.

2. DIVORCE
Article 45 (3) provides that; Parties to a marriage are entitled to equal rights at the time of the
marriage, during the marriage and at the dissolution of the marriage. A new study has found that
divorce rates in Kenya are a half those in the rest of Sub-Saharan Africa. The research done at
McGill University in Montreal, Canada, and published in December last year, shows that only 15
per cent of unions in Kenya end in divorce as compared to most of its neighbors whose rates
exceed 30 per cent3.Marriage gold diggers have suffered a major setback after the High Court
ruled that a provision in the Matrimonial Property Act that requires family property to be shared
according to each spouse’s contribution is constitutional4.

3. SUCCESSION
The Succession Act allows the use of customary law in determining succession issues, especially
in pastoralist communities. This is considered as jurisprudence aimed to lock out women from
inheriting. The courts in Kenya in interpreting learned judges in Kenya, like Justice Kwach is
said to have a conservative view, other judges like Justice Waki and Martha koome are said to
have tied morality to the law. They are of the view that women can inherit as much as the law
provides for. They are not strictly interpreted to this.
The Succession Act by tolerating customary too much focuses on not giving equality to women
to much and thus affecting the woman gender.

2
“Same –Sex Unions to become Legal in South Africa”. New York Times. Retrieved February 5,2018
3
https://www.nation.co.ke/news/Divorce-rates-in-Kenya-lowest-in-the-region/1056-3028472-a4vfm/index.html
4
https://www.businessdailyafrica.com/news/High-Court-rejects-equal-sharing-of-matrimonial-/539546-4561826-
vhuql9/index.html
 4. CHILD CUSTODY & MAINTAINANCE
Article 53(e) of the Constitution 2010, provides that every child has the right to parental care
and protection which includes equal responsibility of the mother and father to provide for child,
whether they are married to each other or not.
Article53 (2) further provides that a child’s best interests are of paramount importance in every
matter concerning the child. Consider the case of P K M v Senior Principle Magistrate 2014

D. INTERROGATION OF THE EXISTING LEGAL SYSTEM IN REGARDS TO

GENDER AND FAMILY
This section shall include a detailed look at the statues that provide for family law and a critical
account of how such laws affect Gender and Family. The laws available in Kenya in regards to
the relationship of family and gender related issues include;
 Marriage Act 2015
 Matrimonial property Act 2015
 Children Act
 Protection Against Domestic Violence Act 2015
 FGM Act
 Succession Act

1. GENDER ISSUES IN THE MARRIAGE ACT

Protection for girls in respect to marriage under customary law, who have been married off
before reaching appropriate age, and against their wishes, to spouses mostly chosen by the
parents of the girl. Early marriage is a major cultural practice that served to disenfranchise the
girl child.
The act requires a declaration that the parties to the marriage were eighteen years of age at the
time of the marriage; that the marriage is between persons who are not within a prohibited
marriage relationship; and that the parties freely consent to the marriage.
There is still a disadvantage for women especially under Section 76, which provides that a
promise to marry is not binding (not a contract capable of specific performance). More often than
not, women are tricked into relationships by men under a promise to marry that is then not
fulfilled. It thus places women in a weaker position.
A contentious area for women is the provision that there is no requirement for consent from
existing wife when one wants to get further wives, where one is in a marriage that is potentially
polygamous. This has been seen as a disadvantage in that women have no say in the number of
co-wives their husband will marry yet they are directly affected by the decision to marry more
wives.
Protection for women in monogamous marriages in the sense that a person in a monogamous
marriage cannot contract another marriage. This has reduced cases of men in such marriages
contracting other marriages to the peril of the existing wife. Another positive protection is the
requirement under the act that a husband must have only one wife at the time to convert to
monogamy. Hence cases of men abandoning their customary marriage wives to contract a
monogamous marriage with another lady have been eliminated in law. The provision under the
act for void marriages helps to deter forced marriage, or early marriage or trickery of women into
marriage by men. Void marriage will be declared in instances involving underage parties,
consent not freely given, or given under fraud and coercion.
There is equal protection for both men and women in marriage in that each spouse bears same
liability in tort to other spouse as if they were not married.
A grey area is the provision that provides that any provision of the Act that is inconsistent wish
Islamic law is not applicable to those who are under the Islamic law. It raises issues in the event
of practices or customs under Islamic law that may be deemed to be against women

2. FURTHER RELIEFS THAT A COURT MAY ORDER UNDER MARRIAGE ACT

Protection to women or men in abusive marriages in that there is provision for a court to order a
party to refrain from molesting a spouse or former spouse.
A grey area and potentially contentious is the provision that a court may order restitution of
conjugal rights where it is satisfied of the truth of statements in support and there are no legal
grounds why the application should be granted. This raises the issue of how a court can supervise
enforcement, and whether this may breach the individual rights of women and men in marriage
in the event of such an order.
Protection of girls and boys as well as men and women from cultural practices that are
retrogressive and contrary to principles of human rights. Under the act, a person shall not compel
another person to perform, observe or undergo any cultural practice or rite. This acts as a
protection against forced cultural practices that encourage early marriage or wife inheritance
among other cultural practices.

3. MATRIMONIAL PROPERTY RIGHTS UNDER THE MATRIMONIAL

PROPERTY ACT
While the matrimonial property regime in Kenya aims at redressing issues of gender and
property rights, the effect is not as marked due to the fact that according to some estimates, only
5% of the land in Kenya is registered jointly in the names of women and men and just 1% is
registered solely in the names of women.
Article 14 of the African Charter expressly guarantees the “right to property”
Article 16 of the Universal Declaration of Human Rights provides that married women of full
age without any limitation due to race, nationality or religion have the right to marry and to
found a family. They are entitled to equal rights as to marriage, during marriage and at its
dissolution.

The National Land Commission Act of 2012 provides for the management and administration
of land in accordance with the principles of land policy set out in Article 60 of the Constitution
of Kenya 2010 and the national land policy.
Article 1(60) (1) of the Constitution requires that land in Kenya be used and managed in a
manner which eliminates gender discrimination in law, customs and practices related to land and
property in land.
According to the Republic of Kenya report, “most customary laws disadvantage women in
respect of property rights and inheritance. Under the customary law of most ethnic groups in
Kenya, a woman cannot inherit land, and must live on the land as a guest of male relatives by
blood or marriage…..challenge where most communities ignorant of legal provisions hence
customary law subsists on.
4. CONTRIBUTION QUESTION IN MATRIMONIAL PROPERTY RIGHTS
The law has come in to redress injustices women faced in acquiring the rights to property in
marriage by defining the question of contribution.
Contribution is defined under the Act as, monetary and non-monetary contribution including;
1. Domestic work and management of the Matrimonial home
2. Child care
3. Companionship
4. Management of family business or property
5. Farm work

Thus women’s traditional roles within the family have been recognized and are considered in
deciding the question of matrimonial property.
Further, the law provides that both women and men acquire interest in property other than
matrimonial property. A spouse who makes a contribution towards the improvement of a non-
matrimonial property acquires a beneficial interest in the property equal to the contribution
made.
The Act thus renders the five bench Court of Appeal decision in Echaria v Echaria bad law. The
court in this case had declared that only direct financial contribution would determine division of
matrimonial property at divorce. This robbed women of the right to claim an interest in
matrimonial property since only financial contribution was the consideration.
Yet another grey area is in respect of those women who are governed by Islamic law since the
Islamic law may be applied in matters relating to property. A common denominator in most
religions is the patriarchal nature of authority and leadership that may pose problems in the event
of dispute resolution.
In FIDA v AG Pet 164B of 2016 where the beneficial contribution to the matrimonial property is
financial, either direct or indirect towards acquisition of the property, parties to a marriage upon
divorce, divide the property equally.
Possible grey area relating to consent requirement may be seen from provisions of two laws.

i. Section 12 of the Matrimonial Property Act

An estate or interest in any matrimonial property shall not, during the subsistence of a
monogamous marriage and without the consent of both spouses, be alienated in any form,
whether by way of sale, gift, lease, mortgage or otherwise.
A spouse in a monogamous marriage, or in the case of a polygamous marriage, the man and any
of the man's wives, have an interest in matrimonial property capable of protection by caveat,
caution / or otherwise under any law for the time being in force relating to the registration of title
to land or of deeds.

ii. Land Registration Act

Section 5
States that "Except as otherwise provided in this Act, no other written law, practice or procedure
relating to land shall apply to land registered or deemed to be registered under this Act so far as
it is inconsistent with this Act."

Section 95
Subject to the law on matrimonial property, if a spouse obtains land for the co-ownership and
use of both spouses or, all the spouses— there shall be a presumption that the spouses shall hold
the land as joint tenants unless— a provision in the certificate of ownership or the certificate of
customary ownership clearly states that one spouse is taking the land in, his or her own name
only, or that the spouses are taking the land as joint tenants; or the presumption is rebutted in the
manner stated in this subsection.
This raises a problem mostly for women in polygamous marriages in that it seems to suggest that
consent is only required under monogamous marriage.
Does S 12 above imply that spouses in a polygamous marriage would not be encumbered by the
requirement for spousal consent? Is there a conflict of laws that need interpretation or clarity by
courts or the legislature?

5. PROPERTY RIGHTS IN POLYGAMOUS MARRIAGES

Equality of the genders is the hallmark for property rights under the act and this is reflected in
the provision that Matrimonial property acquired by the man and the first wife before the man
married another wife shall be retained equally by the man and the first wife only
Equality also seen in the provision that matrimonial 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 parties
Another radical gender based effect of the act is the provision that with regard to spousal
liability, parties to a marriage share liabilities incurred during the marriage for the benefit of the
marriage equally. Traditionally, men have borne the brunt of such liabilities since they are seen
traditionally as the providers. This is a welcome relief of sorts.
Protection of both spouses but more essentially for women in marriage against arbitrary sale of
matrimonial property which has been the case in the past. Women had no say and thus ended up
most affected when spouses sold property with no resort to them. Matrimonial property cannot
be sold, leased, mortgaged during a monogamous marriage without the consent of both spouses.
In most communities, in the event of a dispute between spouses, the wife was kicked out of the
house and told to go back home. This inhuman treatment has been curbed by the provision to the
effect that a spouse shall not, during the subsistence of the marriage, be evicted from the
matrimonial home by or at the instance of the other spouse except by order of a court.
Further protection of women interests in matrimonial property is seen from provisions that where
matrimonial property is acquired during the marriage in the name of one spouse, there is a
presumption that the property is held in trust for the other spouse. Where it is in the names of the
spouse jointly, there’s a presumption that their beneficial interests in the matrimonial property
are equal. It is possible for a wife to hold her matrimonial property with the husband separate
from that of the other wives. Any wife can own matrimonial property equally with the husband
without the participation of the other wife or wives.

6. DIVORCE
Acknowledgement of certain grounds for divorce, especially cruelty, desertion, rape among
others mean that instances of women suffering in silence in abusive marriage relationships will
go down. They have the option of opting out of the marriage based on these grounds. The
recognition of rape as a ground further protects women in marriage. The concept of marital rape
was not recognized within many cultures.
A major problem arises in that lack of resources would mean men or women with limited
financial resources may be unable to prove adultery as a ground for divorce. It may require
hiring specialists like investigators to gather evidence. This problem was seen in the case below.

In the W.E.L v JMH, the petitioner filed for divorce from his wife on the grounds of adultery. S
66 (2) (a) provides for the grounds upon which a civil marriage may be dissolved. These include
adultery by the other spouse. In his petition and in his evidence the petitioner alleged that the
respondent had affair with other men, would come home late and drunk and was cruel to him.
On the allegation of adultery the court found that the petitioner had failed to name even one man
with whom the respondent was committing adultery. The court held that it is not enough to
simply throw about allegations of adultery but the petitioner must adduce evidence to prove
beyond a preponderance of doubt that indeed the respondent was committing adultery. The
petitioner must give names, times, and occasions. The mere fact that he suspected the wife of
adultery cannot amount to proof of the fact.
Equality for the spouses is seen in the gender neutral requirements for maintenance. But even
more important is the protection for women or men who may have sacrificed careers for the sake
of the family in that under the act, a court may make an order for maintenance of a spouse
where:-
1. Spouse has refused or neglected to provide for the spouse or former spouse as required
under the act
2. If the person has deserted the other spouse
3. When granting or after granting decree of separation or divorce.
4. After making a decree of presumption of death, the spouse or former spouse is found to
be alive.

E. GENDER ROLES WITH REGARDS TO FINANCES

When it comes to financial provision in the family, the Kenyan society and indeed the African society has
always defined that role as belonging to the man.

HISTORICAL PERSPECTIVE
The man, who has been the head of the family, was the chief provider for the family. Before monetization
of the economy, men used to ensure that the home had enough food, children had clothes, and later where
education had been introduced, the man ensured that children went to school. The man would also divide
the available land between his sons when time came. The woman was not expected to provide but to only
take care of the home, cook and perform some other domestic duties. Providing for the family was seen as
a heavy duty and since the man was perceived to be superior compared to the woman, he would be well
placed to perform that role.
Men were also allowed to be polygamous and so a man would marry as many wives as he would be able
to sustain. Also due to the fact that sons inherited property (mostly in form of acres of land), they were
better placed to provide for their families once they got married. This was entrenched in the former
Kenyan Constitution5 at section 82 (4b) which permitted discrimination on the basis of sex in matters
regarding succession, that is ``devolution of property on death or other matters of personal law”. The
section6 negated any measures aimed at achieving justice in the distribution of matrimonial property. The
institution of marriage was heavily defined by custom.

REDEFINING THE FAMILY

The change of gender roles in terms of financial provision has slowly been taking place since the
inclusion of western culture, religion and laws in Kenya. It all began with the redefining of the institution
of marriage. Among some of the western jurisprudence to be applied in Kenya is the case of
Hyde v Hyde”7 where family was defined to consist of the man, one wife and the children of the marriage.

The courts in the country led in this transformation with the landmark case of Kivuitu Vs Kivuitu8. Justice
of Appeal Gachuhi remarked in that “The time when an African woman was presumed to own nothing
at all, and all she owned belonged to her husband and was regarded as a chattel of her husband has
long gone.”

The law has also tried to do away with some backward practices in the customary form of marriage,
though in a limited and technical sense. Section 45 (3) of the Marriage Act9 states that persons to a
marriage shall be at least 18 years, shall not be within a prohibited relationship and shall consent to the
marriage. This does away with the issue of planned/forced marriages and also children being married.

F. CURRENT PERSPECTIVE

Article 45 of The New Constitution10 defines marriage to be between a man and a woman who have
freely consented. Article 27 states that there shall be no discrimination of any kind based on sex or any
other factor.
This opens opportunities for women both at the family level and at the workplace to contribute in
financial planning and provision. A global study by HSBC carried out in 2011 showed that 65% of men
make all or most of their household’s financial decisions. When it comes to decisions involving the
household budget, women have a slight edge at 37% compared to men at 34%. This gender gap is less
pronounced for those in their 30s, where younger men take more interest in budgeting than older
generations.

5
Kenyan Constitution, 1963
6
Kenyan Constitution, 1963 sect. 82(4b)
7
(1861-73) ALL E.R.175
8
Mary Anne Matanu Kivuitu v Samuel Mutua Kivuitu (1991/92-Kenya Appeal Reports: 241)
9
The Marriage Act, No. 4 of 2014
10
Kenyan Constitution, 2010
With the empowerment of women, more women leave their houses with their husbands and go to work
thus making them to contribute to the finances of the family. Many factors have contributed to the rise of
women in financial provision and planning in the family.

They include:
a) Girl child education which has given the women gender skills and knowledge to gain resources
and has also opened employment opportunities for them.
b) The fight against gender discrimination at the workplace thus opening opportunities to all sexes
and giving women the financial power to provide for their families.
c) Creation of anti-discrimination laws and policies in all sectors of the economy which levels the
playing field when it comes to inheritance and employment opportunities giving both women and
men the resources to provide for their families.
d) Change of mindset among society members with regards to family financial duties.
e) Presence of single-parent families where mothers are forced to provide since they are the only
parent.

Among the factors that still put the man at the position of financial provision are:
a) Religion (mostly Christian and Muslim) which emphasizes that the man shall provide for his
family.
b) Customary traditions where the man is shouldered with the duty of providing for his family.

Though the ground hasn’t shifted much in terms of financial provision and planning in the family,
significant progress has been made. Change has been influenced by various laws and the gradual shift in
mindset among society members. However, more needs to be done and with the implementation of the
various initiatives, the much sought progress shall be achieved.
REFERENCES
1) Constitution of Kenya, 2010
2) Universal Declaration of Human Rights 1969
3) African Charter On Human and People’s Right
4) Repealed Constitution of Kenya, 1963
5) National Land Commission Act of 2012
6) The Marriage Act No 4 of 2014
7) Marriage Act 2015
8) Matrimonial property Act 2015
9) Children Act
10) Protection Against Domestic Violence Act 2015
11) FGM Act
12) Succession Act