Court rejects bid to inherit property in woman-to-woman marriage dispute

Kenya: A woman’s bid to inherit property from a fellow woman on grounds that she was married to her traditionally has flopped after the Court of Appeal upheld a decision by two lower courts that she was not married to her.

The woman-to-woman marriage is practised in cases where a married woman who cannot bear children marries a willing woman to bear children on her behalf.

The court made it clear that because Agnes Kwamboka was married to a man, she could not qualify for a woman-to-woman marriage arrangement. Having been married to a man and sired children with him, Kwamboka left her home and invaded another woman’s home to claim her land.

She wanted the land divided into an equal share with her alleged co-wife, Birisira Kerubo, saying they were both married to one Birita Nyanchama. However, three appellate judges sitting in Kisumu dismissed an appeal lodged by Kwamboka on grounds that only Kerubo was married to Nyanchama.

The court said Kwamboka had been married to one Makori Onguso, adding that she had been living elsewhere for 10 years before going to claim the property.

Kwamboka claimed she was also entitled to the piece of land in equal shares with Kerubo, adding  they both had been married to the original owner of the piece of land in a woman to woman marriage.

But Nyanchama who testified in court said she transferred the property to Kerubo, whom she had married under the Abagusii custom and denied ever paying dowry to Kwamboka’s kin. Nyanchama’s daughter, who gave evidence in favour of Kerubo, denied Kwamboka’s claims.

It was Kwamboka’s uncle, James Rianga, who informed the court that his niece had been married to Onguso and not to Nyanchama.

Judges Onyango Otieno, Festus Azangalala and Ole Kantai said the court appreciated the Abagusii’s woman-to-woman marriages, but nothing of the sort took place between Kwamboka and Nyanchama.

The appellate court also took issue with the tradition, saying it was discriminatory against the female children who were not allowed to inherit real estate. The court pointed out that the Constitution criminalises any form of discrimination, adding that Article 27 enhances equal inheritance. The Article provides that every person is equal before law and has the right to equal protection. It further provides that men and women have the right to equal treatment including the right to equal opportunities.

According to Pastor Ronald Arita of Nyamira Deliverence Church, the practice has been a source of protracted property rows leading to delayed burials.