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The Kipsigis – Kalenjin group of Kenya and customary laws governing marriage

Posted by African Press International on September 5, 2007

LAW REPORTS: Burial under customary law

Story by Timon Kosgei
First Publication Date: 12/25/2006
Once a man marries a woman, she is considered to be his wife until he divorces her, or she dies, according to Kipsigis customary law. It will not matter that she separates from him and conceives children with other men. These children are said to belong to the husband. But a special ceremony called keeturum saandet must be performed to reconcile such a couple. The ceremony is not imposed on an unwilling party, nor is it to reconcile an adulterous wife. It can be performed only for a woman who has been separated from her husband for a short time. Kiplangat Korir versus David Kipngeno Mutai [2006]eKLR ( www.kenyalaw.org ), High Court at Kericho, (Justice L Kimaru), February 22, 2006.

Kiplangat Korir (the appellant) and David Kipng’eno Mutai (the respondent) had a dispute on where Esther Chepkemoi Mokwony, also known as Esther Chepkemoi Mutai, who died on September 8, 2005, would be buried. Kipng’eno wanted Kiplangat to bury her, saying he married her under Kipsigis customary law and, therefore, should perform all the funeral rites. But Kiplangat declined the request.He said that although he married Chepkemoi more than 31 years ago, she ran away from their matrimonial home after less than a month. He said she did not return to the home.

Kipng’eno filed a suit in the resident magistrate’s court at Sotik, seeking orders to compel Kiplangat to bury Chepkemoi under Kipsigis customary law. Kiplangat filed a defence, denying any responsibility to bury her. 

The trial magistrate told Kiplangat to bury Chepkemoi at his farm at Soymet. He was aggrieved by the decision and appealed to the high court. In his memorandum of appeal, he faulted the trial magistrate for ruling in favour of Kipng’eno.

He raised several grounds of appeal: that the trial magistrate had heard and determined a burial dispute whereas, in law, he lacked the requisite jurisdiction to do so.

Kiplangat was further aggrieved that the trial magistrate had failed to appreciate Kipsigis customary law as relates to burials and, therefore, arrived at the said erroneous decision.

He urged the court to allow the appeal, set aside the magistrate’s judgment and substitute it with an order dismissing the respondent’s suit.

A brief history of the case is that the appellant, Kiplangat Korir, married Chepkemoi under Kipsigis customary law in 1974 and paid dowry. On celebrating the marriage, Kiplangat said she ran away from his rural home after about a month.

While separated from the appellant, Chepkemoi conceived out of wedlock and gave birth to three sons. One of them, called Cheruiyot, died and was buried at his maternal uncle’s parcel of land at Kabajet. The other two sons include the respondent, who was born in 1984, and Kimutai (1994). 

The three children were not sired by the appellant. According to Kipsigis customary law, the appellant (Kiplangat) and Chepkemoi were not divorced at the time she died. They were only separated.

Two issues came to the fore for determination: whether the trial magistrate had jurisdiction to hear matters relating to customary burial disputes; and interpretation and applicability of Kipsigis customary law to this case.

The counsel for the appellant, Mr Ong’anyi, said under Section 3(2) of the Judicature Act, as read with Section 2 of the Magistrate’s Courts Act, the magistrate did not have jurisdiction to hear a burial dispute. This jurisdiction is exclusively reserved for the High Court, he said.

Mr Rono, counsel for the respondent, disagreed. He said the appellant had submitted himself to the jurisdiction of the trial magistrate and participated in the entire trial. He said the appellant was stopped from raising the issue of jurisdiction at that stage of the trial.

The high court considered both arguments, and agreed with the appellant’s counsel that a resident magistrate’s court can hear customary law disputes only as specified in Section 2 of the Magistrate’s Courts Act. A magistrate could not extend jurisdiction and hear matters which are not specifically provided for under the said section.

The judge was emphatic that customary burial disputes shall be heard by the High Court only. But the court said the appellant was stopped from raising the issue of jurisdiction of the trial magistrate’s court at that stage of the appeal.

On whether Kipsigis customary law requires the appellant to bury Chepkemoi, the court referred itself to provisions of the law under Section 51 of the Evidence Act.

This requires any person who asserts a custom to adduce evidence on the existence of such a custom. The respondent called three witnesses, who testified on the existence of a Kipsigis custom that requires a man to bury a wife whom he had not divorced but was separated from for many years.

On his part, the appellant called witnesses who said that under Kipsigis customary law, a man was not compelled to bury a woman who had deserted the matrimonial home for the length of time admitted in the suit.

Once a man marries, the woman is considered to be his wife until he divorces her or she dies. It will not matter that she was separated from him and conceived children with other men. Such children would be said to belong to the husband. The only caveat is that a special ceremony, keeturum saandet, must be performed.

“The Kalenjin Heritage: Traditional Religious and Social Practices” by Burnette C Fish and Gerald W Fish, published by Davy Koech Foundation and the African Gospel Church, 1995, on page 129 says: keeturum saandet was to reconcile a couple who had separated. The ceremony could not be imposed on an unwilling party.

The respondent testified that since the appellant was married to Chepkemoi under Kipsigis customary law, and since he had not divorced her in a ceremony called keepet-lool or kiilgee, then the respondent and his younger brother were his sons.

The respondent conceded that Chepkemoi made no effort to return to her matrimonial home until a few weeks before her death. Keeturum saandet was, therefore, not performed. The ceremony could not be performed once one of the parties had died.

The court said since keeturum saandet had not been performed, then the appellant could not be compelled to bury Chepkemoi. It said marriage between the two had ceased to exist and that the duty of burying Chepkemoi fell on her representatives.

The court relied on the case of Sakina Sote and Anor versus Mary Wamaitha C.A. Civil Appeal No. 108 of 1995 (Nairobi where the court held that… the custody of the body and the duty of disposing it falls primary on the executor.

The high court granted the appeal.
Lifted and published by Korir, African Press International (API)/ African Press in Norway (APN) africanpress@chello.no tel +47 932 99 739 or +47 6300 2525

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