The High Court has allowed the son of a woman who was inherited to share in his late father's wealth but denied his mother similar privilege, saying African customs bind an inherited wife to strictly inherit from her first husband.
The court sitting in Busia did not buy the argument that Jane Odera Egesa had cohabited with Anaclet Adongo Adongo and gotten a son, Reuben Egesa.
While dismissing her appeal, Justice William Musyoka said Jane, who was inherited in 1972, was bound by tradition while her son, who was born in 1975, was not.
The court also noted that Jane never moved from her late (first) husband's home during the cohabitation, a signal she was set to only inherit from the first lover.
"Her cohabitation with Anaclet, if at all there was any, and at her late husband's home, could not bring forth a valid marriage, even by cohabitation and presumption. Under custom, a man cannot set up a home at the home of another man, whether that other man is alive or dead. He can only cohabit with the woman in the home of that other man, but he cannot convert it to his home," the judge said.
He continued: "There are ancestral ties to a home and land. Based on that, I find no foundation for holding that the trial court erred in finding and holding that there was no valid marriage between Jane and Anaclet, which could be presumed from cohabitation between them."
The judge said the concept of widow inheritance was complex but it was clearly not about the inheritor taking the widow as a bonafide wife.
"Widow inheritance was not marriage. The woman remained the wife of the dead person, for in African culture, marriage was for life, forever. Marriage was not terminated by the death of the husband. The widow remained as the wife of the departed. Widow inheritance was only meant to help the widow cope with life in the absence of her husband, it was not to make her the wife of the inheritor," said Musyoka.
He added that this was so as the widow retained the home she shared with her first husband, and the inheritor never took over the property.
Her children, he said, remained the children of her dead husband; they did not become the children of the inheritor.
"In some cultures, any children begotten by the inheritor and the widow would not be the children of the inheritor, but of the departed husband. Things have changed for the younger generations, but for Jane and her generation, that was the practice," he said.
Jane had moved to the high court seeking to reverse a magistrate's order that barred her from inheriting property she claimed Anaclet had given her as his wife.
She, among other grounds, cited the trial court's failure to find that she was a widow of Anaclet, whose wealth was under succession.
She also said that the trial court failed to recognise that marriage by way of wife inheritance stands just like any other form of marriage.
Her son, Felix, stated that his mother, Jane, became the wife of Anaclet after her first husband, Rubano, a brother of Anaclet, died but she remained in the home of Rubano.
He said things took an ugly twist when the list of the survivors of Anaclet was being made.
"I was listed as a survivor of Anaclet, his son in particular, but my mother Jane was not. This happened even when my father had allocated some land, Samia/Bukhulungu/138, to her from which she was chased out of," he said.
"My father inherited my mother from my uncle Rubano, the owner of neighbouring parcel of land Samia/Bukhulungu/139 but when the latter died she ceased to be his wife even as she stayed in the said parcel reading his name."
Not even the evidence of a local administrator, Nangoso chief Fredrick Ogutu Alubala, could dissuade the high court from not throwing out Jane's appeal.
The chief had filed a letter used to initiate the succession case, saying Jane was the bonafide wife of Anaclet deserving an inheritance.
He wished away the argument that she was married to Rubano and residing in his parcel of land therefore not entitled to inherit from Anaclet, saying that stood for nothing as, "it is not the woman but the man who moves into the home of an inherited woman."
In a rebuttal, Risi Ayuma Adongo, a respondent in the high court case, said that she was the first of two wives of Anaclet and Jane was not among them.
She said that Jane likely confused the customary good care she received from a well meaning brother-in-law to marriage.
"My husband inherited her according to customs and took care of her since she had lost a husband who happened to be his brother. They had a child together. What stands out, however, is that if he meant to marry her, he could have built her a home in his own parcel, Samia/Bukhulungu/138, which never happened," she said.
The Busia Council of Elders, who addressed the court as expert witnesses for bearing specialised knowledge on customary matters, feared Jane wanted too much than her fair share.