What you need to know:
- Mariati, who insisted that he was married to Ndeti and claimed the right to bury the child, argued that his Luhya culture was patrilineal and dictated that the child belonged to the father.
- "Based on the evidence on record, there is no evidence that the Luhya custom is patrilineal for the child to belong to the father. I find this position to be unjust and discriminatory," ruled Justice Nyaga.
The High Court has granted a woman the right to bury her deceased child against the 'customary law' demands of the father.
Justice Heston Nyaga in his ruling granted Rose Ndeti, a Kamba woman, who had been in an undefined relationship with Andrew Ong'ale Mariati, a Luhya man, for more than 20 years, the right to bury her deceased adult daughter in her rural home in Ukambani, despite protests from the man's family.
The two had gone to court after failing to agree on which culture to follow.
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Mariati, who insisted that he was married to Ndeti and claimed the right to bury the child, argued that his Luhya culture was patrilineal and dictated that the child belonged to the father.
Ndeti, on the other hand, denied any marriage to the man, pointing out that Akamba culture dictated that the children of an unmarried woman belonged to the mother.
It was Mariati who first took the case to the lower court, seeking permission to bury the child on his ancestral land in Kakamega in accordance with Luhya customary law. He persuaded the court to issue orders granting him the right to bury the child, prompting Ndeti to appeal to the High Court.
According to court documents, the couple met sometime in 1999 and became involved in an intimate relationship before living together with the intention of getting married. The relationship produced a child in 2002, who they raised together for three years before separating.
The relationship became an on-again, off-again affair where they continued to live together and separate. But in 2023, while the couple were separated, the daughter, who was a student at Mount Kenya University (MKU), fell ill and died while receiving treatment at Mediheal Hospital.
According to Ndeti, the child had spent her entire life with her maternal grandparents in Ukambani and knew the place as home. In her appeal, Ndeto accused the magistrate of failing to consider Kamba customary law alongside Luhya customary law in ruling in favour of the father.
According to the woman, Kamba custom stipulates that a marriage is only valid if the bride price, called ntheo, is paid, something Mariati never did.
Mariati, on the other hand, argued that he was married to Ndeti and also had a close relationship with the child, taking care of her needs, including paying her school fees. When the child fell ill, he took her to the hospital and paid the bills before she passed away.
He argued that the woman did not own land and that burying the child at her parents' rural home would prevent him from visiting the site.
However, in overturning the trial court's decision, the court found that the two were presumed married at first, but separated because they had been living apart for seven years before the child's death.
The judge also found that Mariati had failed to prove that his customs provided that the child belonged to the father, a position he described as discriminatory and unfair.
"Based on the evidence on record, there is no evidence that the Luhya custom is patrilineal for the child to belong to the father. I find this position to be unjust and discriminatory," ruled Justice Nyaga.
He noted that the child should be buried in a place where she had close ties.
"It is therefore obvious that the place with which she had the closest connection was Ukambani and in my opinion that should be her final resting place," Justice Nyaga ruled.