In a groundbreaking decision, the High Court of Kenya has rejected the customary notion that children inherently belong to their fathers. The judgment, delivered by Justice Heston Nyaga, is being hailed as a landmark moment in redefining the balance between cultural practices, gender equality, and child custody rights in Kenya.
This ruling came after a contentious dispute between former couple Andrew Mariati and Rose Ndeti over the burial of their late daughter, Race Owelwa, who passed away on July 2, 2023.
The Case: Burial Rights and Cultural Claims
At the center of the case was Mariati’s claim that, under Luhya culture, children belong to their fathers and, therefore, Owelwa had to be buried on his ancestral land. He argued that customary law dictated paternal rights in burial matters.
However, Justice Nyaga firmly rejected these assertions. He emphasized that Mariati failed to provide evidence or expert testimony proving that Luhya customs were exclusively patrilineal. The judge pointed out that courts cannot rely on sweeping cultural statements without substantiation.
Quoting his judgment, Nyaga stated:
“The respondent (Mariati) failed to adduce evidence to prove relevant Luhya Customary Law on burial.”
This statement underlines the judiciary’s insistence on evidence-based arguments rather than reliance on unsubstantiated cultural claims.
Ndeti’s Position: Kamba Customary Law and Maternal Rights
In contrast, Ndeti maintained that according to Kamba Customary Law, children of unmarried single mothers belong to their mothers. She further argued that Mariati had not fulfilled the ‘Ntheo’ dowry ceremony, a necessary cultural step to formalize their marriage.
Justice Nyaga agreed, noting that without the fulfillment of Ntheo, Mariati and Ndeti could not be recognized as husband and wife under Kamba customs. This recognition tipped the balance in favor of the mother’s claim.
The court ultimately granted Ndeti the right to bury her daughter in her maternal home in Machakos, stressing the importance of honoring the child’s emotional bond with her mother’s community.
Justice Nyaga’s Criticism of Lower Court Ruling
Significantly, Justice Nyaga also criticized the magistrate who had previously barred Ndeti from taking part in the burial plans. He ruled that the exclusion was unjustified, as Mariati had provided no convincing reason to deny her involvement.
The High Court ruling emphasized inclusivity, allowing Mariati’s family to participate in the burial arrangements. The judge noted that evidence showed Owelwa had a positive relationship with her father, making their involvement in the burial appropriate.
Why This Ruling Matters
This decision is more than a family dispute; it challenges the long-standing cultural belief that children belong solely to their fathers. By rejecting this customary notion, the court opened the door to:
- Gender Equality in Custody Matters – The ruling ensures that mothers are not sidelined purely because of patriarchal traditions.
- Evidence-Based Decisions – Cultural claims must now be backed by credible experts or documents, preventing misuse of traditions.
- Recognition of Maternal Bonds – The court acknowledged the mother’s equal or greater emotional and cultural connection to the child.
- Setting Precedents – This judgment could guide future cases involving custody, inheritance, and burial disputes.
Understanding the Customary Notion in Context
The customary notion that children belong to fathers is deeply rooted in many African cultures, particularly in patrilineal societies. Traditionally, lineage, inheritance, and family identity are traced through men.
However, Kenya’s Constitution and modern family laws increasingly recognize gender equality and the best interests of the child over rigid customs. This ruling reflects that shift—prioritizing fairness and inclusivity over discriminatory practices.
Implications for Future Disputes
The ruling has far-reaching consequences:
- Burial Rights: Families can no longer rely solely on patriarchal customs to determine where a child should be buried.
- Marriage Recognition: Proof of cultural ceremonies like dowry payments (e.g., Ntheo in Kamba culture) becomes critical in establishing marital rights.
- Legal Evidence: Courts will demand expert witnesses or scholarly input before recognizing customary practices in disputes.
- Child Custody: Future custody battles may be guided by this precedent, ensuring that mothers are not unfairly stripped of their rights.
Balancing Customary Law with Modern Justice
Kenya’s Constitution recognizes customary law, but only when it does not conflict with principles of justice, equity, and gender equality. Justice Nyaga’s ruling strikes that delicate balance—respecting cultural diversity while rejecting discriminatory aspects.
It sends a clear message: customary practices must evolve to align with modern values of fairness and inclusivity.
Final Thoughts
The High Court’s rejection of the customary notion that children belong exclusively to fathers marks a turning point in Kenya’s family law. Justice Nyaga’s decision reaffirms the importance of evidence, inclusivity, and gender equality in sensitive matters such as custody and burial rights.
This case highlights that traditions, while valuable, must be carefully weighed against constitutional rights and human dignity.
What are your thoughts? Do you believe this ruling is a step forward in protecting children and mothers, or does it risk eroding cultural identity?
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