LEGAL PLURALISM

MOMBASA LAW SOCIETY/UNIVERSITY OF NAIROBI

(A Discourse on the Customary Laws of Kenyan Communities with regard to: Birth and Naming of Children, Marriage and Divorce, Rites of Passage, Death, Family Relations and Succession.)

APPLICATION OF CUSTOMARY LAW IN KENYA

From time immemorial, each distinct community had its own separate and distinct practices that governed the personal law applicable thereon. It is clear that such practices and customs acquired the force of law which held such communities together in an organized way. However, most of those practices were rubbished during the colonial era but a number of those practices still apply as part of the personal law of the African communities. In the process, with regard to the personal law of the Kikuyu, there is therefore a high mixture of Kikuyu customary practices and the Common Law practices that were introduced by the Colonial Government.

It is out of the realization of the above that the law has expressly provided for the application of the African Customary Law where appropriate. We cite Article 11 of the Constitution of Kenya, 2010 as read with Article 159(2)(3) of the Constitution of Kenya,2010 which provides that courts are guided by the principles of traditional dispute resolution mechanisms and that people’s culture or traditions are recognized as part of the applicable law. Under Article 159(3)of the Constitution of Kenya,2010 as read with Section 3(2) of the Judicature Act such customs and practices apply only to persons who are members of that particular community. However, analysis of the said Article 11 and 159 (3) of the Constitution of Kenya,2010 vis-à-vis Section 3(2) of the Judicature Act, leads one to the conclusion that Section 3(2) of the Judicature Act unreasonably limits the application of the African Customary Law in that it is left to the Judicial Officers to decide whether application of such laws would be repugnant to justice and morality or whether such law is inconsistent with any written law.

 Recognition of Alternative Dispute Resolution and traditional dispute resolution mechanisms is thus predicated on these cardinal principles to ensure that everyone has access to justice (whether in courts or in other informal fora), and that disputes are to be resolved expeditiously and without undue regard to procedural hurdles that bedevil the court system as they are informal. It also proceeds from the recognition of the diverse cultures of the various communities in Kenya as the foundation of the nation and cumulative civilization of the Kenyan people and nation. Most of these mechanisms are entwined within the cultures of most Kenyan communities which are also protected by the constitution under Article 11 of the Constitution of Kenya, 2010.

However, it is clear that African Customary Law is rendered inferior to Statutory Law and/or even the Common Law. Section 3(2) of the Judicature Act is structured in a pecking order so that African Customary Law is at the bottom. It is thus hoped that sooner or later a Constitutional Court will be called upon to determine the rightful place of the African Customary Law vis-à-vis Statutory Law and the Common Law and particularly in light of Article 11 and 159 (2) & (3) of the Constitution of Kenya,2010.

Courts of Law have on several occasions upheld the application of a party’s Customary Law. We see this in the famous case of Virginia Wamboi Otieno vs Ochieng Ougo&Another (1986)eKLR where the court, interalia, held as follows: –

“…. It is arguable that the law of the victim and his or her family should be applied. In general statement, the customary law of the person affected by the transaction should be applied. The court directed that the deceased be buried in accordance with the customs of his Luo clan and stated that there is no way in which an African citizen can divest himself of association with the tribe of his father. Mr Otieno, having been born and bred a Luo, remained a member of Luo tribe and subject to the customary law of the Luo people. In this circumstance, the person affected by the transaction was the deceased as it involved his burial place.

From that decision it is clear that the cultural practices of a person with regard to his personal law is a matter that cannot be ignored. In this regard, it is therefore critical for legal practitioners to have a good grasp of the personal law particularly as relates to the community such a practitioner operates in. A good example is a practitioner who operates in geographical areas where Islam is practiced, for example, as is the case in our Coastal Region. We know that under the Mohammedan Marriage, Divorce and Succession, Cap. 156 Laws of Kenya, one has to properly understand the customs and practices of those who practice the Islamic Faith. Similarly, legal practitioners are called to properly understand the customs and practices of communities wherein such practitioners operate from.

It is for the above reasons that Justice Eugene Cotran was commissioned to codify the Customary Law of quite a good number of the tribes in Kenya and as a result of that work produced a book that is known as Cotran’s Restatement of African Customary Law. I highly recommend that we all acquaint ourselves with the contents in the said book as it contains a reasonably good summary of the personal law of many of the tribes in Kenya. It is a good starting point for one to understand the elementary principles of the Customary Laws of the different tribes of Kenya.

 

KIKUYU CUSTOMARY LAW

This paper broadly examines the customary law and practices of the Gikuyu people although that name has, over the course of time been corrupted so that the community is now referred to as the Kikuyu. This community is to be found in the central part of Kenya and the principal landmark associated with that community is Mt. Kenya. Literally speaking, the Kikuyu live their lives while facing the said mountain. The Aberdares Range is another principal feature that is closely associated with the Agikuyu people. In between are such prominent rivers like Sagana River and many other ranges which make the topography prevailing in the locality that the Kikuyu people live in, and one that is also very interesting.

We shall examine the customary practices and law of the Kikuyu people with regard to birth and naming, rites of passage (circumcision), marriage, divorce, succession and the law regarding ownership of land. The subject at hand is vast and no pretense can be made here that this paper can do even a bit of justice to the said subjects. The purpose of this paper is to only highlight a number of interesting aspects of the said community and thereby hopefully open the eyes of the reader who may research further in the areas highlighted in this paper

For anybody interested in a deeper understanding of the Kikuyu Customary Law, I recommend that one studies the following books: –

–Facing Mount Kenya by Mzee Jomo Kenyatta.

-Cotran’s Restatement of African Customary Law.

-My Walk with Kenyatta by Duncan Ndegwa

-The River Between by Ngugi Thiong’o

I also noted that in Chinua Achebe’s “Things Fall Apart”, one sees a lot of similarities in the customary practices of the Ibo people from Nigeria with the customary practices of the Kikuyu people. It is therefore recommended that one should also read the book.

Birth and Naming of Children

When a child was born, the women ululated five times for a boy and four times for a girl. In Kikuyu, ululations are known as ‘ngemis’ and consist of a highly melodious, high pitched sound made by vibrating the tongue. Ngemis were only performed or done in times of great celebrations for example during the birth of a child, marriage and other key events. No ‘ngemis’ were ever done in times of mourning or great sadness. The extra ‘ngemi’ for a boy was to signify bravery. The other four ululations pronounced riches, leadership, foresight and priesthood. A still born child got one `ngemi’. This made all the people around know the nature and state of the new born.

The name of the child was and still is automatic according to the naming system starting with parents and siblings of the groom (the father) and alternating to those of the bride (the mother). In instances where a woman had lost babies in succession, the newly born would be named by the women who would present gifts to the young mother to redeem the newly born by giving it a name of either animals, events, places, ornaments or other things in order to avert the killing spirits so that the new born may survive. In other words, all first-born sons were named after the father’s father and every first-born daughter was named after the father’s mother. The purpose of such naming system was to ensure the names of parents would not be forgotten in the foreseeable future.

All children belong to the father and the social fabric was such that even when the parents divorced or died, the children were easily adopted by either the wives left behind or by their paternal relatives. Therefore, no child was without a strong family relation.

Circumcision

This Rite of Passage for boys and girls between ages 15-18 were conducted periodically after every five to six years and all those who underwent the rite were grouped together in a riika which was roughly the equivalent of a generation and the members would go age together and engage on many social fronts as a unit. The ceremonies related to the rite of passage were conducted early in the morning whereby the boys of one locality were gathered in a prominent man’s home where a large room was provided for the boys’ occupation during the period of recuperation. On the other hand, the girls remained in their mothers’ homes. The boys were indoctrinated into the expected behaviour of mature men as protectors of the family and society at large. The girls were trained on how to conduct themselves as good wives and mothers. Then there was no conflict in gender roles as is the case today.

The circumcision (irua) process for boys was more elaborate. It was such that on the eve of the occasion all rules of decency and morals were suspended for both men and women as people ran amok with celebrations, song, dance illicit sex, a day anyone could sleep out – Marara Nja.  Once the villagers escorted the boys to the river with pomp, then life returned to normal. There were certain strategic sites near the river demarcated for the operation. Boys were assisted by their Atiririri who would continue to check on them till full recovery. After the surgery they became Ciumiri (newly circumcised), to later take in full all men’s duties. As they graduated, they were given various gifts by their fathers and uncles.

Growing Up

The tribe was held together through fear that if you wronged anyone then a curse would befall you. With this in mind, young people had no choice but to respect and honor older people. Today we hear of cases of sons and daughters abusing their parents, some beat them up while some even kill their parents. In the Kikuyu setting any young person who would dare to do such a thing would attract a curse upon himself.

There was great respect between the different age groups. Such crimes as theft, murder, rape, bestiality and the like were severely punished. The guilty party would be burnt alive in a beehive or put in a drum and rolled down the hill into the river.

There were many rules and regulations that governed all the people in Kikuyu land. There were prohibitions ‘mugiro’ and abominations ‘thahu’. Depending on the seriousness of the matter, the remedy was either simple like being told to cross back over someone over whom you had crossed over (gutagarara) or very complex and expensive. If someone was found to be in possession of ‘urogi’ (poison) or if one was established to be a thief, the penalty was death by being burnt alive or put in a ‘mwatu’ (drum) and rolled down a hill until he dies. If the ‘thahu’ done was not deliberate, it called for a medicine man to force the culprit to throw up (gutahikio) using certain herbs as a means of cleansing. Most cases required that a goat is slaughtered to atone for the removal of ‘thahu’. A very solemn occasion

Marriage

Every Kikuyu person was expected to marry or be married after circumcision and after mentorship of what is expected of them. Kikuyus are polygamous in nature. The man would live in his own personal hut and there was a very clear method of how the man indicated which woman he wanted to spend the night with in his hut;thingira.

How did it work? Every wife was obliged to give the man supper but depending on the one he clears the plate. That is the woman he will spend the night with in his thingira. During all other time wives slept in their own huts that generally surrounded the man’s hut.

Did you know that it was the first wife who would generally seduce other women to agree to marry her husband and become her co-wives?

Did you know that a man was entitled to marry as many wives as his material wealth could adequately take care of? So, the general rule was, the richer the man, the more his wives would be.

For a valid Kikuyu marriage there had to be a delivery of a mwati and harika (a small he and she goats) also bride price had to be paid. The essentials of a valid Kikuyu customary marriage are well defined and settled. These are as summarized in Eugene Contran’s case book on Kenya customary law: –

  • capacity to marry
  • consent (as between the parties and their families)
  • Ngurario
  • Ruracio
  • Commencement of cohabitation

See the case of MARY WANJIRU GITHATU VS ESTHER WANJIRU KIARIE (Court of Appeal at Eldoret in Civil Appeal No. 20 of 2009) where in his dissenting judgment Justice Nyamu J.A.  stated: –

“It is important to observe that customary law marriages have some important ingredients without which they cannot possibly qualify as such. The ingredients are essentials in the making of a customary law marriage. A customary law marriage is a covenant of marriage sealed by the necessary customary ingredients and for the Kikuyu these ingredients are well known and documented. If the courts were to fail to take this into account, they would be giving recognition to the ‘come we stay’ marriages which are neither customary nor statutory”.

The marriage process involved several visits of both sides so that each got to understand the in-laws very well. The first visit by the bride’s side was called the ‘Kirugo’. Thereafter, the grooms’ men visited and brought ‘njohi ya njurio” (the traditional brew of first asking) whereby the girl confirmed to her uncles that she was ready for marriage. After ‘kuhanda ithigi’ (to plant a twig and ‘kurachia’ (dowry payment), there was ngurario and thereafter ‘njohi ya njikurukio’ and finally ‘njohi ya kuhoya uhiki’ whereby the groom is now ready to collect his bride at which point she goes into hiding and has to be located and forcibly taken to her new home. After some time of moaning, she is returned to her home then later she is peacefully escorted to her new home.

In summary, if any of the said steps was overlooked, the marriage would be of no legal consequence.

Did you know that there was a provision for the women to marry other women? This happened only in exceptional cases such as: –

–When a woman was barren and was well to do, she would go through the procedure set out above and marry a woman of her choice but of course they would never have any intimate relations (lesbianism) for that would have been a great taboo.

–The woman/‘husband’ would diplomatically suggest names of suitable men who the married woman/‘wife’ would be obliged to have sexual relations purely for procreation. The issues thereof were the children of the woman/’husband’ who married the other woman.

–If the barren woman was already herself married, she would still proceed to marry another woman who would relate to her husband and sire children.

Divorce

Divorce among the Kikuyu was very rare. This is because the husband and the wife had since birth been taught the fundamental role and place that each played in the society. The Kikuyu were a patriarchal society and the men were the head of the families with their women acting as their able deputies and the children had no choice but to obey the pecking order.

Divorce would generally occur in cases of infidelity by women or where the wife was barren however wife initiated divorce did occur.

Upon divorce, the in-laws become obliged to return the dowry to the husband.

Divorce was an elaborate affair whereby the time allocated for this discussion would not allow us to go into but it should be emphasized that divorce was very rare among the Kikuyu.

Succession

Under Kikuyu Customary Law children are entitled to inherit through their mother’s houses this includes the unmarried daughters or those who were divorced. Married women however, could not inherit as they were considered to belong to their marital clan and land belonged to the clan. When a lady was married, it meant that she had gone away from her parents and were therefore obliged to partake from her married family wealth.

Being a patriarchal society, land was owned by men. Upon the death of the married man, land would be distributed to all the wives of the respective houses that he had where a house means a widow and the children of that house. Distribution was on equal basis; no married daughter could inherit from her parents so there may be a lot of interesting discussions on Article 27 of the Constitution of Kenya, 2010 on discrimination and the Law of Succession Act where it has been interpreted that even married daughters are entitled to inherit from their father’s estates. We refer to the decision in Koinange & 13 Others vs Charles Karuga Kinange (1986) eKLR for the preposition on equality of all houses. Yet, we see that in the matter of The Estate of Mbiyu Koinange, Succession Cause No. 527 of 1981 (a son of Senior Chief Koinange whose estate is covered in Koinange & 13 Others -vs Charles Karuga Koinange supra) we see that the distribution thereof is now made to the married daughters. I think that is why Harris J. held in The Estate of Stephen Mbuthia HCCC 1289/1974 as follows:

“African customary law is in a fluid state, that changes occur due to various factors such as education, the influence of religion and social and economic advancement and that the volume (a reinstatement of African Law) should not be taken to be a once-and-for all- statement.”

He went further to state that he was

“entitled to and should take judicial notice of the relative increase in the degree of emancipation of the young generation of women which has become prevalent…such as education employment and ownership of property and the leaning towards equality of rights, privileges and obligations as between sexes indicated in the Constitution of [the] country and apply these in the consideration of the question of the right of unmarried sisters in the distribution or inheritance of the property of the deceased father.”

This means that, times have changed and culture is not static and in fact that was the main pillar of Dr. Khaminwa’s arguments in SM Otieno Case, which involved conflict between Customary Law and Common Law in modern-day Kenya in the case of an inter-tribal union.

Relations on Land ownership

Traditionally, Kikuyus are farmers. Land means a lot to them. No wonder, nowadays we hear Kikuyus say that;‘ Muganda ni title’ meaning land ownership only makes sense if one has a title document thereof. The Kikuyus developed a system where one would clearly demarcate and clear a particular piece of land which would then belong to the person who cleared (it in Kikuyu known as mwenegithaka.) Such land would then belong to the person who cleared the bush. However, owing to the well-knit social system that permeated the Kikuyu’s way of life, the law developed a system where even poor people were not left to die of starvation because of hunger hence a concept known as muhoi or ahoi in plural otherwise known as Tenant-at-Will under the English Common Law.

That concept is well discussed in the case of Belinda Murai vs Amos Wainaina & 9 others (1978) eKLR where the High Court held that the decision sought to be appealed against, established that an occupier of Kikuyu land known as Muhoi who by Kikuyu custom, has rights of cultivation but cannot acquire proprietary rights to the land.

The learned trial judge followed a dictum by Duffus JA (as he then was) in Kimani v Gikanga [1965] EA 735 equating a Muhoi with a tenant at will held that…… “even if the respondent was a Muhoi this did not prevent him from acquiring a title of land by adverse possession. This would appear to be the common law of England which applies to registered land in Kenya”.

On appeal to the Court of Appel, the said Judgment was set aside by the Court of Appeal in Belinda Murai & 9 Others -vs- Amos Wainaina (1981) EKLR where the court held that:

“I refuse to be moved by the suggestion to this court that customary law and practice affecting land have ceased to exist in Kenya. As explained earlier, I stress that it is not for this court or any other court to pronounce ineffective, the dictates of parliament to recognize customs and customary law whilst those dictates are on the statute books. Much as our courts hold in high esteem the legal and judicial process of England, it is most desirable for any judiciary to primarily apply its country’s laws to the state and conditions of things within its jurisdiction before looking elsewhere.

My considered judgment upon the above reasons and considerations is that I am forced to disagree with the decision of the learned trial judge. I find that on the evidence the respondent occupied the land on the understanding that he would never acquire ownership thereof; and that by his customary law as well as by the application of the common law, to the said evidence, he can only be classified a licencee.”

I believe this is a case is similar to adverse possession cases in Common Law where, if the point of entry was with the consent of the owner, the occupier cannot claim that his occupation is adverse to the registered proprietor.

Death/Burial

Kikuyus had a lot of fear about death and wanted to avoid anything to do with the dead completely. They totally avoided contact with a corpse so that if one was critically ill to the point of death, they were removed from the homestead and a small temporary hut ‘githunu’ was built for them. Food was delivered to them until their death at which point an opening was made in the wall of the hut for hyenas to pick the body and thereafter the hut was set on fire The cleansing for anyone who touched a corpse was that the ‘mundu mugo’ (medicine man) would present the bone of an elephant which the culprit would step on before the ceremony of ‘gutahikio’ was done. Kikuyus had no burial ceremonies until the coming of the Europeans.  Nowadays, the Kikuyu bury the deceased in graves with decency but without some universally agreed code of conduct.

As Kikuyus had a very little purpose in dead bodies there were no burial disputes.

Conclusion

The culture that held the Kikuyu society together has been highly eroded by the forces of the Western Civilization. However, certain aspects of that culture are still strong and binding to all Kikuyus. In particular, the naming system, marriage ceremonies, respect for parents (although this is declining at a very fast rate).

I strongly feel that there are a lot of advantages to be derived from sustaining those aspects of the Kikuyu culture that help in creating a more orderly society. Therefore, this is a subject that should be thoroughly discussed and taught from generation to generation for the sake of sustaining the positive aspect of the Kikuyu culture.

ACKNOWLEDGEMENTS: 

Finally, I wish to express my sincere gratitude to Mombasa Law Society and the University of Nairobi, Mombasa campus for organizing this interesting event. I also appreciate my mother, Salome Njeri Ngibuini, my sister, Lucy Mumbi Kimani for reminding me on certain aspects of Kikuyu culture. Equally, I thank Gladys Kiptum, Advocate for her industrious research for the material used in this presentation.

 

 Presented by Mr. Gikandi Ngibuini, Senior Advocate on 11th June, 2021.

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