Court rules women’s marriage valid

Six years after she heeded her parents’ plea to marry an elderly childless woman who needed an heir, Ms Monicah Jesang’ Katam has left a mark in the country’s legal landscape.

She already had two sons who would fill the void in the life of the elderly Cherotich Kimong’ony Kibserea, then 83 years old.

Ms Katam was also single as she no longer lived with the father of her two sons. The proposal for her to marry the old woman was made to her parents in 2005.

With her “husband” deceased six years down the line, Ms Katam considers she fulfilled her obligations under the traditional practice common among the Nandi and Kisii communities.

She moved to court seeking to be issued with letters of administration of her “husband’s” estate after a man who initially claimed to be Ms Kimong’ony’s son and a woman who alleged that she had left her the property jointly contested her application and sought a caveat on the estate.

The objectors in the case were Mr Jackson Chepkwony and Ms Selina Jemaiyo Tirop.

This was to trigger a groundbreaking legal dispute whose resolution last month has now given legal backing to the customary union in which elderly, childless women “marry” younger ones for the purpose of child bearing and inheritance.

In the precedent-setting judgment, Judge Jackton Ojwang, then based in Mombasa but now awaiting to join the Supreme Court, gave the right of inheritance to Ms Katam, the petitioner.

Justice Ojwang’ noted that the law placed her and her children first in line to the inherit her husband’s estate.

This was in respect to a succession case filed by Ms Katam, 38, who was seeking a grant of letters of administration intestate for her husband’s estate.

Speaking to the Nation on Wednesday, Ms Katam said she was delighted with the ruling.

She said she agreed to get into the relationship after her mother was requested by Ms Kimong’ony for her hand in marriage.

The old woman had visited her parents’ home in Eldoret where she was staying.

“I already had two sons and she agreed to adopt them since I was no longer with their father. This is allowed in our culture,” she said.

She explained that she intended to get a male friend since she had been “widowed” and could not stay “just like that”.   

The tradition is common among the Nandi, where an elderly barren women identify a younger one to bear her children for the purpose of inheritance.

In his ruling, Justice Ojwang’ made reference to Eugene Cotran’s The law of Marriage and Divorce (1968), which states that “woman to woman marriage is a recognised family institution in the Nandi customary law”.

Part of the estate that Ms Kimong’ony left included money in three bank accounts, an 11-room Swahili house in Kwa Hola, Port Rietz and household goods.