With Gillian Ombogo,
I lost my husband in 2007 after 16 years of marriage. We got two beautiful daughters and my husband had an older child- a son- from a previous relationship. My daughters are now aged 23 and 27 while my stepson is 32. I moved to our rural home when my husband died because I was jobless. I completed the house we had started building together. I actually took loans from my chamas to complete it. Two years ago, my stepson put up his ‘simba’ within the compound. He has recently become rude and asked that I vacate the home as it now belongs to him, and I have no son. What rights do I have in the home? This is my matrimonial home. I spent my money completing it, and my daughters, who are both in the US, also sent some money for the construction.
Christine Ajuang, Migori
The Matrimonial Property Act protects your ownership rights as a wife based on your monetary or non-monetary contribution to the acquisition and maintenance of your matrimonial home. Your chama loans and your daughters’ contributions are considered under the law as valid monetary contributions.
The division of your husband’s property would be determined by the rules of succession. Succession is the transfer of the rights of a dead person’s property to his or her heirs. The Law of Succession Act, cap 160 of the Laws of Kenya prescribes the rules that determine what happens to an individual’s property after his or her death.
Assuming your husband had left a will, the rule of testate succession or testacy would apply. This is where the distribution of his property would be carried out according to his wishes or intentions, and bequeathed to persons of his choice.
Alternatively, the rules of intestate succession or intestacy would apply, where your husband did not leave a will or the will was invalidated. The nature of the distribution of his property would be based on several factors including whether your husband was polygamous or you were his only wife, his valid beneficiaries and the value of his property.
The law recognizes your daughters (married or unmarried), stepson and yourself as legal beneficiaries to your late husband’s properties. If you were the only surviving spouse of your late husband and if he died without a will, you would be entitled to all his personal and household belongings and a life interest to his remaining property, which would only terminate upon your remarriage.
On this note, the first step would be to institute your late husband’s succession proceedings in court. The importance of this process is to provide the procedure and mechanism for the transmission of the property from your late husband to his beneficiaries. At some point in the proceedings, you will be required to file a schedule on how the property will be distributed amongst his beneficiaries. If you are unable to agree on the mode of distribution, the courts provide for a dispute resolution mechanism; mediation, to aid the beneficiaries in settling the dispute. If mediation fails, the court will take over and in its discretion make a decision on how the property would be distributed.
Published in the Daily Nation Newspaper of 2nd October 2020