A Kenyan woman married to a foreigner who is not an envoy to Kenya or is not a citizen of a country that is at war with Kenya (where the birth of the child occurs in a place that is occupied by Kenya) can only pass her citizenship to her children if they are born in Kenya. The same does not happen if such a child is born outside Kenya since such a child acquires Kenyan citizenship only if the father is a Kenyan citizen. A Kenyan woman married to a foreigner does not pass her citizenship to her husband though a Kenyan man automatically passes his citizenship to a foreign wife on such marriage. The famous Botswana case of Unity Dow Vs A.G served to successfully challenge a similar provision in their law as discriminatory against women.

Women land & property rights in Kenya

Under the general law of contract a woman, whether married or not has contractual capacity. She may enter into valid contracts on her own behalf without involving or affecting her husband. Women in Kenya only hold 1% of registered land titles in Kenya, with around 5-6 % of registered titles held in joint names. A recent National land Policy Issue and Recommendations Report pointed out that of the ten main causes of poverty in Kenya identified in the poverty reduction Strategy, many had direct linkage with land issues, low productivity in crop farming and livestock farming, lack of access to land, rural employment, general insecurity couched in ethnic animosity, inadequate access to infrastructure and social services and gender imbalance.

Kenya’s legal framework regulating land is highly complex and fundamentally unsatisfactory. There are over 75 laws governing land which taken together create an outdated, obscure and highly technical regime. Many of these laws are obsolete, others conflict supporting different land regimes within the same area. These problems are compounded by the poor state of land records.

Women have suffered several abuses to their land and property rights mainly witnessed through the married women’s lack of control over property, unequal division of property upon divorce or separation, harmful customary practices, limited inheritance from husbands and unequal inheritance from the parents
The legal owner of land in Kenya is the person whose name appears in the title deed and it is the same name that is in the registry. In most marriages, it is the man’s name that appears in the title deed, such situations are unfair to women especially in customary marriages allowing polygamy as they constrain the woman from taking full control of the land and she cannot initiate long-term projects to conserve the land. Because women’s interests are largely not noted on title deeds, the land on which they have customary user rights and on which they may depend for livelihoods can be disposed of without their knowledge or consent.

In Jacinta Wanjiku Kamau VS Isaac Kamau Mungai & Ndirangu Gitigi Jacinta’s husband sold their family land without her consent or the consent of their eight adult children. The family depended solely on the land for their cash and subsistence crops and had also built a house on the land in which they resided. The Land control board gave their consent to the said sale transaction. The purchaser of the land threatened to evict the family when Jacinta moved to court for protection. Jacinta argued that her husband held the land in trust for herself and their children and that he had no authority to sell the said land without their consent. After the sale, the husband bought another piece of land in another area where he proceeded to marry another woman who now lives with him there.

The Court held that it has never been the practice nor a legal requirement that before the legal proprietor of a piece of land disposes of it he or she should consult any third party be it his/her husband or wife.

Formal statute law in Kenya potentially gives married women property rights. The legal situation is an emerging one, and is still not entirely clear. The principle appears to be that even in customary marriages; women have equal property rights in matrimonial property. Problems arise in dividing up matrimonial property on divorce or separation where the property will be divided equally if it is registered in joint names but it is not so when the properties are solely in the husbands name.