Rono v. Rono
Kenya, Court of Appeal at Eldoret

Rono v. Rono

DATE 29-04-2005DOWNLOAD LEGAL DECISION

Judges:

Philip Nyamu Waki

Philip Nyamu Waki

Emmanuel O’Kubasu

Emmanuel O’Kubasu

Riaga S.C.Omolo

Riaga S.C.Omolo

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Topics:

Intersectional Discrimination

Related standards:

Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) Article 1

RELATED STANDARDS

Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) Article 1

For the purposes of the present Convention, the term "discrimination against women" shall mean any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.
African Charter on Human and People´s Rights "Banjul Charter" Article 18

RELATED STANDARDS

African Charter on Human and People´s Rights "Banjul Charter" 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. 3. The State shall ensure the elimination of every discrimination against women and also ensure the protection of the rights of women and the child as stipulated in international declarations and conventions. 4. The aged and the disabled shall also have the right to special measures of protection in keeping with their physical or moral needs.
Constitution of Kenya (Kenya) Article 82 (1)

RELATED STANDARDS

Constitution of Kenya (Kenya) Article 82 (1)

Subject to subsections (4), (5) and (8), no law shall make any provision that is discriminatory either of itself or in its effect. [FN: 9 of 1997, s. 9,]
Succession Act (Kenya) Article 27

RELATED STANDARDS

Succession Act (Kenya) Article 27

In making provision for a dependant the court shall have complete discretion to order a specific share of the estate to be given to the dependant, or to make such other provision for him by way of periodical payments or a lump sum, and to impose such conditions, as it thinks fit.
Succession Act (Kenya) Article 28

RELATED STANDARDS

Succession Act (Kenya) Article 28

In considering whether any order should be made under this Part, and if so what order, the court shall have regard to
Succession Act (Kenya) Article 40

RELATED STANDARDS

Succession Act (Kenya) Article 40

(1) Where an intestate has married more than once under any system of law permitting polygamy, his personal and household effects and the residue of the net intestate estate shall, in the first instance, be divided among the houses according to the number of children in each house, but also adding any wife surviving him as an additional unit to the number of children. (2) The distribution of the personal and household effects and the residue of the net intestate estate within each house shall then be in accordance with the rules set out in sections 35 to 38.

WHY IT MATTERS:

It is unclear what the precedential value this case holds. First, this is an intermediate appellate court. Second, the Constitution of Kenya was rewritten in 2010, so the non-discrimination provision of the Kenyan constitution referenced is no longer in effect.
Nonetheless, the case shows that members of the Kenyan judiciary were willing to apply international law to interpret and apply not only domestic laws but the Kenyan Constitution as well. Even though the Kenyan Constitution at the time provided that non-discrimination provisions need not apply to family law and inheritance matters, the judges chose to apply them. The judges, using international law as a tool, thus prioritized gender equality.
Finally, the decision was also referred to in the subsequent case In Re Estate of Lerionka Ole Ntutu, decided three years later. That case also involved gender discrimination and estate partition. In Re Estate of Lerionka Ole Ntutu relied on Rono v. Rono for the idea that non-discrimination provisions in international law should be used to interpret domestic laws and the Kenyan Constitution, and again found that sons and daughters should inherit equally.

This appellate decision deals with the partition of an estate, consisting primarily of 192 acres of land. The judge in the court of first instance, using her discretion, gave each of the daughters five acres and each of the sons 30 acres. The deceased had two wives. One wife was given 50 acres, as she had no sons, and the other wife was given 20 acres, as she had three sons. On appeal, the judges considered a variety of international treaties Kenya had signed, as well as the Kenyan Constitution and domestic legislation to determine a proper partition. While the appellate court affirmed the role of discretion in estate partition, the appellate court stated this discretion had to have a factual basis. The court overruled the gendered basis on which the trial court had decided, and awarded each wife 30 acres and each child 14 acres.

Stephen Rono Rongoei Cherono had two wives, and nine children between them. The first wife had three sons and two daughters, and the second wife had four daughters. Upon his death, his estate was submitted to the superior court for division. The main point of disagreement between the house of the first wife and the house of the second wife was the proper way to divide 192 acres of land that Rono held. The trial court judge decided to treat all daughters equally relative to other daughters, regardless of mother, and all sons equally. She justified that decision by noting that the daughters had the option to marry and therefore did not need as large a share as the sons. She also noted that under tribal customary law daughters did not inherit at all. She ultimately awarded each daughter received five acres, and each son 30 acres. The second wife, who had no sons, was given a larger share in an attempt to compensate for the otherwise unequal distribution.

The appellate judge first recalled that African customary laws are only applicable when they are not inconsistent with the written laws of Kenya. The judge then quoted Section 82(1) of the Kenyan Constitution, which prohibits discrimination. Sex was added as a protected characteristic in 1997. However, Section 82(4) states the non-discrimination provisions of subsection 1 do not apply in questions of family or personal law, or where customary tribal law might apply.

Judge Waki then considered if international law is relevant to the matter, referencing Kenya’s ratification of the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). The decision particularly notes the non-discrimination provision in Article 1 of CEDAW. Next, the judge also references the obligation under the African Charter of Human and Peoples’ Rights to eliminate discrimination against women.

Keeping in mind these international obligations, the judge declared that such international instruments can be applied “where there is no conflict with existing state law, even in the absence of implementing legislation.” The opinion further notes that at the time, a new Constitution was being drafted, and the proposed draft contained a provision acknowledging that customary international law and international rights instruments ratified by Kenya form part of Kenyan law. The judge concludes that international law will thus inform the decision.

The judge then decides that customary tribal law does not apply in this circumstance. The Succession Act states that such customary law may only be applied in certain areas, and the area where the Rono lived is not within one of these listed geographic areas. Nonetheless, the decision acknowledges the Act provides for discretion in partition. However, the judge declares that such discretion must be based in law and fact. The judge finds that considering the possibility that Rono’s daughters might marry could not be justified legally or factually.

The judge awards each widow 30 acres, and each child 14 acres. The sons and daughters inherited equally.

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