Judge Lucy Waithaka has not read the law. She is altogether unfamiliar with the constitution and well established legal principles. What is worse, she lives in another century whose mores hardly make sense in a modern, progressive democratic society anchored on equality and the rule of law. This is a judicial officer who is totally unafraid of parading her misogynistic, backward ideologies and projecting them as enunciation of sound law.
The heirs of Senior Chief Wambugu wa Mathangani had gone before her to decide on various claims to his estate. The matter was triggered by demands for compensation from the Government through Ministry of Lands for the use of Wambugu Farm as an Agricultural Training Centre without compensating the estate. The question of whom the legitimate beneficiaries and rightful heirs of the chief’s estate are.
The good lady ruled that Kikuyu customary law would be used to determine who the heirs are. Accordingly, judge Waithaka decided that married daughters are ineligible to inherit from the estate. Only the sons and unmarried daughters would be eligible. Regardless of the sons’ marital status, they would inherit. The unmarried daughters are catered for under the patrilineal principle that unmarried women have the status of minors regardless of their age, and thus require the protection and care of the family. Both the women who benefit and those who do not do not fare well in the eyes of customary law.
The constitution is categorical that any law or custom that offends its principles is void. It provides for equality and equal protection of the law. It also prohibits discrimination on any ground, including gender and marital status. What the judge just did was to crash head-on with the supreme law. She just took an unconstitutional decision.
She might as well rule that uncircumcised women are ineligible for public office, or that men have a right to chastise their wives through violent physical acts. It is a decision reverberating with echoes of the ruthless misogyny of another age. The fact that the subject matter formed the estate of a tribal chief does not grant latitude to escape the bounds of progressive thought.