The High Court has allowed the son of a woman who was inherited to share in his late father's wealth but denied his mother similar privilege, saying African customs bind an inherited wife to strictly inherit from her first husband.

The court sitting in Busia did not buy the argument that Jane Odera Egesa had cohabited with Anaclet Adongo Adongo and gotten a son, Reuben Egesa.

While dismissing her appeal, Justice William Musyoka said Jane, who was inherited in 1972, was bound by tradition while her son, who was born in 1975, was not.

The court also noted that Jane never moved from her late (first) husband's home during the cohabitation, a signal she was set to only inherit from the first lover.

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"Her cohabitation with Anaclet, if at all there was any, and at her late husband’s home, could not bring forth a valid marriage, even by cohabitation and presumption. Under custom, a man cannot set up a home at the home of another man, whether that other man is alive or dead. He can only cohabit with the woman in the home of that other man, but he cannot convert it to his home," the judge said.

He continued: "There are ancestral ties to a home and land. Based on that, I find no foundation for holding that the trial court erred in finding and holding that there was no valid marriage between Jane and Anaclet, which could be presumed from cohabitation between them."

The judge said the concept of widow inheritance was complex but it was clearly not about the inheritor taking the widow as a bonafide wife.

"Widow inheritance was not marriage. The woman remained the wife of the dead person, for in African culture, marriage was for life, forever. Marriage was not terminated by the death of the husband. The widow remained as the wife of the departed. Widow inheritance was only meant to help the widow cope with life in the absence of her husband, it was not to make her the wife of the inheritor," said Musyoka.

He added that this was so as the widow retained the home she shared with her first husband, and the inheritor never took over the property.

Her children, he said, remained the children of her dead husband; they did not become the children of the inheritor.

"In some cultures, any children begotten by the inheritor and the widow would not be the children of the inheritor, but of the departed husband. Things have changed for the younger generations, but for Jane and her generation, that was the practice," he said.