The husband is given the right to control and manage common property and to make all decisions regarding such property. While the Code requires that the husband act judiciously and not alienate property without the consent of his wife, strong traditional and cultural beliefs discourage women from enforcing this requirement. Over the last 38 years, ethnic groups have for the most part continued to apply their own norms and customs. In 1995, the Constitution, while reiterating the concept of gender equality and non-discrimination on the basis of sex, legally reopened the issue of the applicability of customary law. It provided that if parties to a dispute of personal status agree to the applicability of customary law, then this law would apply.
Legislation is yet to clarify whether such agreement includes gender discriminatory customary laws.
The 1995 Constitution provides that all land belongs to the state. The former principle of land belonging to the tiller has been abrogated, creating a window through which female heads of households can now have greater access to land. In the case of married women, however, they continue to access land through their husbands. In Kenya, the Constitution permits the application of customary law to personal matters and to the devolution of property. Women's access to economic resources in Kenya are consequently largely defined by customary laws.