The High Court has declared as unjust and discriminatory, the customary notion or myth, that children belong to their fathers.
On Wednesday, Justice Heston Nyaga, ruled that the same claim was offensive to justice as it is discriminatory on the part of the mothers.
Judge Nyaga ruled that no customary laws, in respect to the ownership and possession of children, are documented.
Nyaga dismissed the claim by Andrew Mariati that in the Luhya culture, children belong to the father and are supposed to be buried in their father’s land.
“There is no proof before this court that the Luhya customs are patrilineal-based on relationship to the father or descent through the male line,” ruled Nyaga.
According to Nyaga, Mariati failed to provide experts from the Luhya community to prove his claims.
“The respondent (Mariati) failed to adduce evidence to prove relevant Luhya Customary Law on burial,” ruled Nyaga.
He made the declaration when he overturned a magistrate’s court decision that barred Mariati’s ex-wife Rose Ndeti from participating in the burial of her daughter Race Owelwa, 21.
Nyaga in contrast, allowed Ndeti to bury Owelwa in accordance with the Kamba Customary Law.
The judge ordered that Owelwa’s body be interred in Ukambani, the matrimonial home of her mother.
The court ended a three-month dispute between the ex-couple, as the body of their daughter Owelwa lay in the mortuary since her death on July 2, 2023.
According to Nyaga, Mariati did not comply with crucial requirements including the ‘Ntheo ceremony’ (dowry) to officially marry Ndeti.
“The court notes that the couple has separated for over seven years and the woman is considered unmarried,” ruled Nyaga.
Nyaga took note that Ndeti provided an expert to support her claim that under the Kamba Customary Law, children of unmarried women belong to their mothers.
The judge further ruled that in the seven years, Ndeti and Mariati were apart, Owelwa was under the care of her mother and the two were closer.
“The place Owelwa had the closest connection was Ukambani and should be her ultimate resting place,” he ruled.
Nyaga said that burial is a sentimental issue and care must be taken in determining where deceased persons should be buried.
He faulted the magistrate who had barred Ndeti from burying her daughter and ruled that Mariati did not adduce any reason why he wanted Ndeti barred from the burial plans.
“The respondent’s family is free to participate in the burial plans. Evidence in court shows that the deceased had a good relationship with her father,” ruled Nyaga.
Owelwa died after a short illness and Ndeti wanted to bury her at her ancestral home in Ukambani.
However, Mariati wanted her to be buried in Kakamega, his father’s home. He said he had blood with Ndeti’s parents.
The court, however, established that the land Mariati wanted his daughter to be buried on had a dispute