This archive report was first published on 18 December 2019.
Published on December 18, 2019, a landmark divorce case has seen a man lose the right to bury his estranged wife, who had been dead for 10 months. The High Court ruled that the woman, who had been married to the man under Kamba customary law, was legally divorced after she took back a piece of cloth called mbui ya ulee and tied it in the man's homestead.
Justice Hedwig Ong'udi declared that a woman married under Kamba customary law can divorce her husband by taking back the mbui ya ulee and tying it anywhere in the man's homestead to signify the end of their union. The judge ruled that the man, identified as JMK, could not claim the body of his estranged wife because he did not make any attempt to reconcile with her during the 10 years they were separated.
According to the court, the woman, identified as JNM, had been living with her new husband, JMM, as husband and wife after separating from JMK in 2008. The estranged husband's case was that he married the woman under Kamba customary law but was not living with her after she left his home in 2008. However, the deceased's brother testified that her marriage to JMK did not work and she returned home several times due to marital problems and finally abandoned her matrimonial home in 2008.
Justice Ong'udi agreed that in the context of the acrimonious separation, the woman was justified to tie the cloth outside the man's home for her own safety. The judge added that two people can never be forced to live as husband and wife against their wishes, and that any traditional belief that enforces strict requirements on divorce is repugnant to justice and should not be tolerated.
The court also ruled that the Kamba tradition does not allow refund of dowry when the estranged husband has been left with the children, and since JMK had taken their children, he was not entitled to any. The judge dismissed JMK's case and allowed JMM to proceed with the burial.
