Same-Sex Customary Couple in Kenyan Court Over Land

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A woman married to another in Nandi County has accused her 'husband' of evicting her from a land she gave her after their marriage.

Hellen Tum was married to Jepkoech Tapkili Metto under customary law.

In the case Tum has accused her  87 year old 'husband' Tapkili of attempting to disinherit her.

Tapkili first filed the case before the High Court in Eldoret claiming that Tum and her children had just been given license to stay on the farm as they looked for where to live.

The octogenarian claims she withdrew the license in 2003, 2004 and 2005 in a bid to evict Tum and her family but they have since stayed put.

She thus sought court orders to declare Tum and her children as trespassers and subsequently be evicted.

Tapkili also applied for a permanent injunction to restrain them from dealing in any way with the disputed land.

But in her replying affidavit, Tum accused Tapkili of seeking the orders “for no good reason”.

She claimed that in August 1987, they got engaged with Tapkili under Nandi customary law that allows for “woman to woman” marriage.

She filed an engagement agreement showing dowry paid and elders present during the occasion as evidence of the union.

“I stayed with her as her wife and I got several children for her,” Tum said in her plaint.

She said that since 1987, she has been living on the said land where she bore her ‘husband’ 15 children.

Under the customary law, a woman was allowed to sire children with men chosen by the woman ‘husband’ and the men would lay no claim to the children.

Tum cited her son George Kibet who fell ill saying Tapkili sold a portion of the land to Peter Ngetich to take care of his medical bills.

“However, the boy died. Tapkili gave me permission to bury his remains in the farm and we called village elders to come and show us where to inter his remains,” she said.

Tum added that her daughter Stella Cherotich also died and was buried on the same land.

Tum termed claims by Tapkili that she was not her ‘wife’ and was instead illegally squatting in her farm as “untrue”.

Tum further complained that while the case, still pending in court, has not been finalized, Tapkili had transferred the said land to a Johana Kipkemei Too.

This, she added, was done despite a restriction placed against the land’s title deed at the Kapsabet Lands Registry until the case was dispensed with.

She claimed the move was fraudulent and meant to defeat the course of justice and consequently sued Too.

Tum now wants all the cases regarding the matter consolidated and heard jointly as she seeks Tapkili’s case be dismissed.

The High Court is to rule on her application to consolidate the cases and set a date for hearing.

Source: The Standard

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