Kenyan High Court reaffirms ruling to recognise woman to woman marriage

Behind the Mask carries an article by Melissa Wainaina describing how the High Court in the Kenyan city of Mombasa has backed a landmark ruling allowing a woman who was ‘married’ to another woman to inherit her late ‘husband’s’ property worth millions of shillings.

In a follow up decision Mombasa High Court judge Maureen Odero ordered that after winning the traditional Nandi woman-woman marriage recognition in the courts earlier in the year, Monica Jesang Katam should consolidate her gains having now convinced the court of her rights to administer the estate of her ‘husband’ after being declared the sole inheritor.

An appeal to suspend the original High Court ruling allowing a woman married to another woman to inherit her late spouse’s property worth millions of shillings was quashed as Judge Odero ordered that the widow, Monica Jesang, should continue being in charge of the estate which she inherited from Ms Cherotich Kimong’ony Kibserea.

In the first ruling, Justice Jackton Ojwang’ who now serves in the Kenyan Supreme Court, ruled that customary law entitled Monica Jesang and her two children to take over the estate of her late ‘husband’ Cherotich Kimong’ony Kibserea.

The ruling followed an application by Jackson Chepkwony and Selina Tirop who claimed to be stepson and niece respectively, to the deceased. The two objected to the issuance of letters of administration to Monica Jesang.

However, the judge dismissed this application saying that in traditional Nandi culture, barren women could ‘marry’ another woman to bear children and these children would belong to the barren woman.

Justice Ojwang said in his ruling, “Since the petitioner is not the ‘wife’ in the conventional sense, nor are her sons ‘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.”

His conclusion was that woman-to-woman marriage is a recognized family institution in Nandi customary law.

According to case records, testimonies indicate that Kibserea had gone to Monica Jesang’s father seeking consent for a ‘woman-to-woman marriage’ between them.

In Monica Jesang’s statement in court she said, “They told me the deceased had come to discuss the question of inheritance. They asked me if I agreed. They said mama has come; do you agree to inherit her wealth? I said ‘yes, I agree to inherit’. She had no children. She wanted to marry me. I said I agree. It was July 13, 2005. The deceased said that since I agree, she would take me to Mombasa.”

According to newspaper reports, the union also saw the exchange of bride wealth that was received by Monica’s father. The ceremony had a signed contract and the court was presented with photographs that showed the ceremony that took place at Monica Jesang’s father’s home in Burnt Forest.

The deceased gave her thumbprint as an endorsement to the marriage agreement and accepting Monica Jesang’s two children as her own. This ceremony is a Nandi traditional wedding and gave Monica the status of a wife giving her a right to inherit the deceased estate.

Kipsang Churman, Monica Jesang’s paternal uncle said in his testimony, “When the deceased came and said she wanted a girl, she said she loved Monica Jesang. When she said that, I asked if Monica Jesang would inherit her wealth. She said yes. I asked Jesang if she loved the deceased; she said yes. I asked the deceased again: ‘Do you love Jesang?’ She said, yes. So I asked her: ‘Will you give dowry?’ She said, yes. She said she would give money, for she had no cattle in Mombasa. She gave two cows; she gave money for two cows; also money for sheep. These things were received by Daniel Katam.”

Kipsang added, “So I asked her to sign. Monica signed. Katam signed. Witnesses also signed. That was all. Once they signed, my work was finished. I am the elder brother to Daniel Katam. By tradition, I had to be there as the elder brother. I presided over the ceremony. I am 89 years old. That kind of marriage is part of the Nandi tradition. Childless mothers marry girls in Nandi culture.”

Woman to woman marriages are not unusual in Africa. In these unions, the head of the home would pay bride price and allow her family name to live on in the children borne out of this union. The men who sire any children in this union have no obligations towards the woman and any children who arise from their interaction. This is a cultural practice accepted among several African cultures.

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