Wednesday, 06 July 2011
BY MAUREEN MUDI
THE High Court in Mombasa has made a landmark ruling allowing a woman who was â€˜married’ to another woman to inherit her late ‘husband’s’ property worth millions of shillings.
Justice Jackton Ojwang ruled that Nandi customary law entitled Monica Jesang Katam and her children to take over the estate of her ‘husband’.
He dismissed an application by Jackson Chepkwony and Selina Jemaiyo Tirop, who had moved to court to object the issuance of letters of administration to Katam for the estate of Cherotich Kimong’ony Kibserea.
In traditional Kalenjin culture, a barren woman could ‘marry’ another woman who would proceed to bear their children by men who would have no obligation towards them or their children. The children would belong to the barren woman or ‘husband’ as she had paid bride price. The practice also spread to neighbouring Kisii but has now largely died out. The name Chepkwony, meaning ‘of a woman’, traditionally signified that someone was a child of a marriage between two women.
Woman-woman marriage was found among Nandi, Kipsigis, and, since about the mid-twentieth century, among Keiyo. It is however not customary among other Kalenjin sub tribes.
A female husband is a woman that has taken some of the traditional male role on behalf of the family. The Kalenjin culture gives her the ability to allow her family name to live on, in a culturally accepted way. She provides a home and inheritance for the children in the family
Her other female God given gift that women have naturally like nurturing care and love with female conscience and intuition serve as strength and her family can enjoy them.
In the suit, Katam said she was the â€˜widow’ of Cherotich who died in Kwa Hola, Magongo area in Mombasa on June 7, 2008. She was survived by two sons aged 16 and 12.
Chepkwony and Tirop claimed to be a stepson and niece to the deceased. They were demanding a share of monies in several bank accounts, household goods and a 11-roomed Swahili house, all valued at Sh2 million.
Chepkwony had written to the court seeking caveats over the estate, claiming that the deceased had left a will dated December 5, 2007.
He told the court that Katam was not a wife to the deceased but a servant. He said the late Cherotich had been married to Sugun Kibiy who has since died. “The deceased’s co-wife is one Pauline Burgei, who is still alive, and the petitioner is not related to the deceased, since she bore no children of her own, and prior to her death, she had been living with her niece, who is one of the objectors,” Chepkwony argued. The duo wanted the petition filed by the widow to be dismissed, saying she had concealed vital documents.
But Katam informed the court that she had the original death certificate issued to her on July 8, 2008, and that the objectors were not her dependants and had no relationship with her but only wanted to benefit from the estate left by the deceased.
Chepkwony, a farmer in Eldoret, Uasin Gishu county, said Katam was not a â€˜wife’ to the deceased, but had worked for her for three years, and left before she died of diabetes.
The court had received two copies of wills, purportedly written by the deceased, one in favour of Katam and the other in favour of Chepkwony. “My mother could not marry Katam at 80 years of age. That is something she could have considered at the age of 40,” said Chepkwony.
However, during cross-examination he said the Cherotich was a sister to his mother. The court also found that fingerprints differed on various documents presented in court.
Justice Ojwang finally ruled, “since the petitioner is not the â€˜wife’ in the conventional sense, nor are her sons â€˜children’ of the deceased in the ordinary manner, it is necessary to consider how the law treats them, in relation to dependency under the deceased’s estate,” He concluded that woman to woman marriage is a recognized family institution in Nandi customary law.