In March 2023, Hellen Mwende had a feeling that things were not right when strange men started streaming onto her land in Mua Hills, Machakos County. “In a span of two months, I began to receive uninvited visitors every other weekend. They would ask very probing questions about the history of the land that I had called home for more than 20 years. They would also provide very minimal details whenever I asked about their agenda,” Mwende explained.
In July that same year, the 53-year-old mother of six had learned that her husband, who was working in Mombasa, had married a second wife and sold the 12 acres of land that they had jointly purchased some 25 years earlier.
“I did not panic. I sued my husband and the buyer for violation of the law. My husband had not consulted me before selling the land,” Mwende stated.
A decade ago, Mwende would not have had the right to sue. Any land she bought with her husband would have legally belonged to him, and he would have been able to sell it at any time, without her consent.
In November 2013, parliament passed the Matrimonial Property Act, a game-changer that gave women a new set of rights in relation to land ownership. Women in Kenya now have the right to consent to the sale of land bought jointly with their husbands. Mwende is currently waiting for a court ruling to stop her husband from selling their land from under her feet.
According to the 2022 Kenya Demographic and Health Survey, an annual publication of the Kenya National Bureau of Statistics, women head about 36 percent of households in rural areas and 33 percent of households in urban areas. Yet only about 3 percent of women in Kenya have individual land title deeds, while 20 percent jointly own land title deeds with their spouse or partner.
Yet while the number of women property owners may still be small, it points to a great departure from a historical imperative whereby women in Africa—Kenya included—typically did not own or lay claim to land. In Kenya, a woman’s right to own, inherit, manage, or dispose of her property has long been under attack from customary practices that grant women only secondary rights to land and property through male relatives.
The 2013 Matrimonial Property Act has ensured that women enjoy a number of rights. Women may now buy and register land individually, and they can inherit land from their parents; formerly, the land had to be divided evenly among all the children.
The law also gives women an equal say in land that is bought and sold in their name, and in the case of polygamous marriages, each wife has a right to a portion of land based on their contribution to its purchase and upkeep. When land is being apportioned after a divorce, the law now considers factors such as a woman’s non-monetary contributions, including domestic work, management of the home, childcare, and farm work. These factors give her the right to more, if not all, of the couple’s land.
Kenya has a complex legal framework, with more than 75 laws regulating land ownership and access. In a move to harmonise the legal framework of land ownership and access for women, the Kenyan government has in recent years enacted laws designed to secure women’s rights to property; it has also repealed several discriminatory laws. The 2010 Constitution of Kenya provides that parties to a marriage have equal rights at the time of marriage, during the marriage, and upon dissolution of the marriage.
The Marriage Act calls for registering all marriages effectively and granting women a legal basis for land ownership claims. The Matrimonial Property Act protects women’s rights to property acquired during marriage, and the Land Registration Act defers to it. The Land Act provides spouses some protection from having their home or land leased or sold without their knowledge. The Law of Succession Act gives both male and female children the same inheritance rights.
Despite all these gains, more still needs to be done to secure women’s rights to land and property ownership. Husna Mbarak, a digital land programme lead at the Food and Agriculture Organization, explains that there are policy gaps and a lack of proper data on land ownership in the country. “We still approximate that less than 2 percent of women in Kenya own land. The moment we go digital and have all the data, it will help in planning and zoning of land for agricultural activities or investors,” she says.
The land policy expert calls for stricter enforcement of the laws, including the Matrimonial Act, and interventions to ensure that there is better land use and ownership. “There is a need to take a new look at land control boards. Land transfer processes should also be reviewed so that we have proper verification methods. When you are a man and want to sell land, you can walk into the land control board with a woman, but there is no way to verify whether she is the true wife,” says Mbarak.
Also, laws alone are not enough to secure a woman’s access to land. The effectiveness of laws depends on awareness of them, the ability to enforce them, and to what extent cultural norms and traditions are practised and followed instead of formal laws. So even with these laws in place, obstacles such as cultural traditions and lack of awareness continue to prevent many women from accessing their fair share of land and property, especially in cases of inheritance.
The cultural stereotypes regarding women’s land ownership have had a negative impact that has rippled through the economy and society. First, women without land and property rights are economically insecure and prone to poverty, which results in them being forced to rely on their spouses or male relatives for survival. This makes them more vulnerable to domestic violence and unable to leave abusive relationships or to negotiate for safer sex, thus exposing them to a high risk of contracting HIV.
Secure land rights for women can provide a pathway to women’s empowerment and agency, and can advance the economic prosperity and human development of future generations. According to the World Bank, ownership and control of land and other assets by women has important implications for economic mobility, conferring additional economic value, status, bargaining power at the household level and household resilience. Ownership of assets may provide women protection in the case of marital dissolution or abandonment, positively influence their position in their homes, and decrease their vulnerability to various forms of violence or discrimination.
In addition, women’s access to land can serve as a basis for food production and income generation, as collateral for credit, and as a means of investing for the future. Land is also a social asset that is crucial for cultural identity, political power, and participation in decision-making.
Women’s equal access to land is a human rights issue with many benefits. Evidence shows that these rights reduce domestic violence and that women who own land are more capable of exiting violent relationships and negotiating safe sex. Agricultural production and food security also increase when women are granted tenure security.