In Summary
  • The embattled woman in the marriage, 43-year-old Josephine Ndulu Munyao, entered into a woman-to-woman union with the elderly Angela Nyamai Munyao in 2005.
  • Fida’s chairperson Josephine Mong’are said the organisation will try all means, including enlisting the help of the Kamba Council of Elders, to solve the dispute that tests the age-old iweto Kamba tradition.
  • Efforts by elders of the Amuumoni Mbaa Kiimi Clan to intervene in the case after the magistrate’s judgement of October 29, 2018 have failed, and Josephine risks eviction from the place where she lives.

The Federation of Women Lawyers (Fida) Kenya has promised to intervene in the case of a woman in Machakos County who has been disinherited by a fellow woman she “married” 14 years ago.

Fida’s chairperson Josephine Mong’are said on Saturday that the organisation will try all means, including enlisting the help of the Kamba Council of Elders, to solve the dispute that tests the age-old iweto, a Kamba tradition where a woman “marries” a younger one to bear children for her.

“We can offer mediation. It may be a unique opportunity to understand how it (the marriage) works,” Mrs Mong’are told the Sunday Nation.

WHAT HAPPENED

The embattled woman in the marriage, 43-year-old Josephine Ndulu Munyao, entered into a woman-to-woman union with the elderly Angela Nyamai Munyao in 2005.

Angela took Josephine in because she had only one child, a daughter, and Kamba traditions allow her to “marry” a woman to bear sons. Without sons, Kamba customs consider a family’s lineage at risk of discontinuation.

Angela and Josephine would later fall apart, leading to a divorce case filed at the Machakos Law Courts in 2016, where Angela wanted an end to their union and to retain custody of Josephine’s five children.

But the presiding magistrate, Yusuf Shikanda, could not give any orders on the matter, observing that it is a same-sex marriage that is not recognised by any Kenyan law.

“It is inconsistent with the institution of marriage as envisaged by the Marriage Act as well as Article 45 of the Constitution. I do not mean to say that such a union is unconstitutional. The formation of such marriage is purely under Kamba custom.

EVICTION

Efforts by elders of the Amuumoni Mbaa Kiimi Clan to intervene in the case after the magistrate’s judgement of October 29, 2018 have failed, and Josephine risks eviction from the place where she lives.

The land has been sold to a buyer who, earlier this year, gave Josephine up to January 31 to vacate the property.

On Thursday, the buyer placed a pile of construction materials on Josephine’s doorstep as she was away doing menial jobs.

“I called youths who removed the rocks from my door, so I could get access,” Josephine said yesterday. “I went to the sub-chief yesterday and he said he could not intervene; that it is not a matter within his jurisdiction.”

FEAR

On Friday, the Nation reported about the risky situation Josephine finds herself in, as there have been one previous effort to pull down her house.

“I live in fear as I am staying alone with my children,” she said.

On Saturday, the Fida boss said that much as they stick with the written laws when handling disputes, they can try solving it through other means.

“We can look at it; but I don’t know whether we have a law backing that kind of an arrangement. Fida may be constrained because we only use purely the law. But let her just come. We work with the Kamba Council of Elders; maybe they can refer her to them,” said Mrs Mong’are.

SURROGACY

Mrs Mong’are also disagreed with the magistrate who viewed the union as a same-sex marriage.

“It’s not even a same-sex marriage. It is like surrogacy. It’s only that there was no name for it because you are a surrogate parent; you have children on behalf of the other but you’re having a heterosexual relationship. It is not really same-sex in the strict sense of the word,” she said.

This is even as a female lawyer, also affiliated to Fida, contacted the Nation seeking to offer free legal assistance to Josephine.