Court of Appeal rules that customary woman-to-woman marriages are discriminatory against female children

Agnes Kwamboka v Birisira Kerubo Ombuna [2014] eKLR

Civil Appeal No. 106 of 2011

Court of Appeal at Kisumu

J W Onyango Otieno, F Azangalala & S Kantai, JJA

September 19, 2014

Reported by Nelson Tunoi & Riziki Emukule

Brief Facts:

The appellant (Agnes Kwamboka Ombuna) filed a second appeal regarding a dispute over a parcel of land. The appellant claimed that even though the respondent (Birisira Kerubo Ombuna) was the registered owner of the land, she was only holding half of the land in trust for her since they had both been married to the original proprietor of the property, one Birita Asairi Nyanchama, in a woman to woman marriage practiced under Gusii Customary Law.

Issue:

1. Whether the appellant and the respondent were co-wives in a polygamous woman to woman marriage arrangement under the Abagusii customary law.

Customary law-customary marriage-woman to woman marriage-whether the appellant and the respondent were co-wives in a polygamous woman to woman marriage arrangement under the Abagusii customary law-whether the purpose of the woman to woman marriage under the Abagusii customary law was inconsistent with the Constitution-Constitution of Kenya, 2010 articles 27, 60(1)(f).

Constitution of Kenya 2010, article 60(1)(f):

“60(1)  Land in Kenya shall be held, used and managed in a manner that is equitable, efficient, productive andsustainable, and in accordance with the following  principles -

             ….......................................................

 (f)    elimination of gender discrimination in law and practices related to land and property in land.”

Held:

1. Customary Law consisted of rules of law derived from the customs and usages of any particular community. They were customs or usages practiced by a particular community for over a long period of time and had consequently acquired the binding force of law within the particular community as they had been accepted within that community. To  demonstrate that such customs or usages had acquired the binding force of law a party relying on the same had to lead evidence in that regard.  The issue of whether a particular custom or usage was binding on any particular community was one of fact.
2. The court would not interfere with the decision of the trial and first appellate court since they had already re-appraised the evidence on record to prove that the respondent was the only ‘wife’ to one Birita. The two courts had appreciated the existence of woman to woman marriages as practiced among the Abagusii community but the evidence adduced showed there was no such marriage between the appellant and one Birita.
3. The purpose of woman to woman marriage was to enable an old, barren or sonless woman to perpetuate her lineage. That practice was discriminatory in that it tended to favor male children who were traditionally the inheritors of property hence the enactment of the Law of Succession (cap 160), which did not make a distinction between male or female children of a deceased intestate.
4. The Constitution of Kenya, 2010 promoted the elimination of any form of gender discrimination in law and practices related to land and property in Kenya under article 60(1)(f) while article 27 criminalized any form of discrimination on any ground and enhanced equal inheritance. The practice that compelled the appellant to enter into a woman to woman marriage with one Birita could only diminish in significance since she already had daughters who were equal before the law just like their male counterparts as per the Constitution of Kenya, 2010.

Appeal dismissed with costs to the respondent.

Cases

East Africa

1. Kemunto, Naomi v Total (K) Limited and Kisii Total Service Station Civil Appeal No 211 of 2008 – (Followed)

2. Onyango & Another v Luwayi [1986] KLR 513 - (Mentioned)

3. Mark Khan Transporters Ltd v Mbugua [2010] I EA 228 - (Mentioned)

Statutes

East Africa

1. Constitution of Kenya 2010 articles 27, 60(1) – (Interpreted)

2. Civil Procedure Act (cap 21) section 72(1) - (Interpreted)

3. Law of Succession Act (cap 160)- Ingeneral -(Interpreted)

Advocates

1. Mr Mageto for the Appellant

2. Mr Nyandieka for the Responden