In Summary
  • Kamba customs allow women who have no sons to “marry” other women out of fear that the family’s continuity is at jeopardy if there is no male child.
  • The senior resident magistrate handling the matter could not issue any orders, noting that this is a same-sex marriage that is alien to Kenyan laws.

All of a sudden, Josephine Ndulu’s voice drops. Subsequent words betray the turmoil within her.

As she discusses her troubles, her melancholic tone makes one wonder: Could her life have been better had she not agreed to be married to another woman in 2005 as per the Kamba traditions?

It is not a good life she leads now. The plot on which her tiny house stands in Masii, Machakos County, has already been sold.

The buyer gave her an eviction notice to evacuate by January 31 but somehow she is still there, hoping against hope.

Moreover, she risks sleeping hungry alongside her young children everyday unless they toil hard on people’s farms or break their backs washing clothes to get them just enough money to live by.

DIVORCE

All that is because Angela Nyamai, the woman who “married” her 14 years ago, currently does not want anything to do with her.

Josephine, on the other hand, does not want to leave the marriage. She says she has “wasted her youth” in that union and cannot go back to her parents to bother them.

Interestingly, the elders of their Amuumoni Mbaa Kimu clan back Josephine. It is a situation that has drawn attention to the age-old Kamba iweto tradition where a woman marries another.

Much as the customs allow the practice to date, rarely did such unions break up, which has left elders and government officials wondering: How should a woman married to another woman be divorced? And does she have any entitlement?

So bad is the situation that it led to Angela filing a divorce case in a Machakos court in 2016, seeking to disband her “marriage” to Josephine but to be granted custody of the latter’s children.

MARRIAGE ACT

The senior resident magistrate handling the matter could not issue any orders, noting that this is a same-sex marriage that is alien to Kenyan laws.

“In my view, the dissolution of such a marriage ought to take the traditional form just like the way it was contracted.

"Parties to such a union cannot move the court for dissolution of their marriage,” ruled Machakos Senior Resident Magistrate Yusuf Shikanda on the conclusion of the case on October 29, 2018.

“The nature of the marriage is not governed by the Marriage Act. It is inconsistent with the institution of marriage as envisaged by the Marriage Act as well as Article 45 of the Constitution,” the magistrate noted.

In early 2005, Josephine did not have such huge issues bothering her. She was a mother of four then, still living with her parents.

Then Angela came her way. Because Angela’s only biological child is a girl, she wanted someone to continue the family lineage.

FAMILY LINEAGE

Kamba customs allow women who have no sons to “marry” other women out of fear that the family’s continuity is at jeopardy if there is no male child.

That is how Josephine, now 43, left her parents’ home in Makueni County to get “married” to Angela, an elderly woman.

From the time Josephine agreed to move in, whereupon dowry was paid to her parents, she would address Angela as “mother” while she would call Angela’s husband Munyao Kilonzo “father”.

One of the elders of the clan told Nation that in such an arrangement the woman married to another woman is considered as the wife of the son she never had; and as such Josephine having sexual relations with Angela’s husband was out of question.

“She does not become a wife but a stepdaughter,” explained the elder. “She’s not allowed to have sexual relations with the man of the house.”

CHORES

The “wife” is however allowed to sleep with any other man from the locality. Josephine did just that and that is how her fifth child, a boy now aged 11, was born.

In late 2005, the family patriarch Munyao Kilonzo died, leaving behind a big family. Besides Angela, there was a first wife who had nine children, five of them boys.

Angela was the second wife and because she only had one daughter, she “married” two women.

The first woman she married was moved from her main house in 2005 when Josephine came in.

She has five children and lives several hundred metres away from Angela’s house.

Like her co-iweto, Josephine has five children. They are aged between 11 and 23 and the community considers them Angela’s grandchildren.

Josephine’s duties as an iweto were to ensure the “mother” was comfortable by doing all house chores and running any errands.

ACCUSATIONS

All seemed rosy for Josephine at first, but it did not last long. She says there was tension in her relations with Angela’s only biological daughter, which has increased over the years.

Josephine says the rift escalated when she questioned why Angela’s daughter was selling property, even the one she was supposed to inherit.

Around July 2016, Angela relocated from her matrimonial home where she was living with Josephine and went to live with her daughter.

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