The Law of Succession Act has some discriminatory provisions such as that a woman forfeits her interest in the husband’s estate if she remarries whereas the reverse does not apply for a widower. The ability of a woman to claim property rights under either Married Women’s Property Act or succession law depends on her ability to establish her married status. This is not easy since registration of marriages is not required of customary marriages and marriage by cohabitation.
Parental responsibility under the Children Act

The Children Act of 2001 provides that where a  child’s father and mother are not married at the time of the child’s birth, the mother shall have parental responsibility at the first instance and the father shall acquire parental responsibility if he applies to court to do so or if he agrees with the child’s mother that he will provide parental responsibility or where he  and the child’s mother have cohabited for a period of twelve months subsequent to the birth of the child or where the father has acknowledged the child. A casual look at this provision shows one how much the child’s interest is determined by the whims of the father. Further, this provision locks out a large number of children from benefiting from parental responsibility from their fathers. As is the case with a majority of men who father children out of wedlock, they do take off at the slightest chance if the law allows them.

In a case that generated great interest a minor sued through her mother and next friend and was joined by 3 non governmental organizations (FIDA Kenya included) as interested parties in which case we challenged this provision of the Children Act as discriminatory to children born out of wedlock. The constitutional court in the infamous judgment held that distinctions are legitimate provided they satisfy the pursuit of a legitimate aim such as affirmative action to deal with factual inequalities and that the discrimination was reasonable in the light of the legitimate aim. In the court’s view, the challenged difference satisfied both the criteria and thus the case was dismissed.

It cannot be overstated that the enjoyment of rights by a child should not depend on the marital status of his or her parents. The question of parental responsibility of the father of a child is easily the most controversial aspect of the Children Act. This is the case not only in Kenya but also in other countries. In countries especially in the West, it is the fathers’ who consider the laws to be against them and who are fighting to have the laws make it easier for them to acquire parental responsibility. In Kenya, there is a great desire to ensure that all children are catered for by both parents. The law obviously has not satisfied the women of Kenya in that respect.