The oath the court would not hear: An elder’s 40-year fight for land and justice

A dying man’s bid to invoke the Kamba community’s most feared instrument of truth has forced Kenya to confront the unresolved tension between its formal legal system and the living traditions it has never fully absorbed.

By Agnes Musyoka

A terminally ill 85-year-old man confined to a wheelchair stunned a Makueni magistrate’s court when he demanded permission to invoke kithitu — the most feared oath of justice in Kamba tradition — to resolve a land dispute that has defeated Kenya’s formal legal system for more than four decades.

Maswili Mulwa’s request was dismissed. The presiding magistrate said he was unfamiliar with kithitu and adjourned the case to November 24 for formal hearing. But the moment itself — an elderly man, facing eviction and the threatened exhumation of his late wife’s body from the contested land, turning to ancestral justice because the courts have failed him for forty years — carries a weight that no procedural ruling can contain. It is one of the most human stories to emerge from a Kenyan courtroom in recent memory, and it raises questions that go far beyond one man’s land dispute in Mutulani village, Makueni County.

The case pits Mzee Mulwa against the family of his late neighbour, Kisese Mutwanthele — specifically four members of the Kisese family who claim a section of the parcel that includes an orange orchard. The court had already visited the homestead to physically verify its boundaries, a recognition that maps and title documents alone cannot always settle what memory and occupation have defined over generations. What the court visit did not settle, and what four decades of litigation have not resolved, is the fundamental question of who the land belongs to and on what terms.

It was at that point of exhaustion — legal, physical and personal — that Mzee Mulwa reached for something older and, in his community’s understanding, more reliable than any magistrate’s ruling. He asked for kithitu. And in a moment of striking cultural clarity, Mzee Munywoki Kisese, from the opposing family, responded not with objection but with a twig — the traditional Kamba gesture signifying acceptance of the oath’s authority. Both men, in that instant, were operating within a framework of accountability that the court around them had no tools to engage with.

To understand why that moment matters, one must understand what kithitu actually is — not as folklore or superstition, but as a sophisticated system of truth-enforcement developed by the Kamba people over centuries precisely because formal structures of power could be manipulated by the wealthy against the poor. Academic scholarship on Akamba customary law, including research published in the Journal of African Law and anthropological studies conducted over decades, describes kithitu as a form of sacred medicine — an instrument whose name translates as “principal source,” meaning that from which all reckoning proceeds. It is not invoked lightly. Before the oath itself can be administered, the ordeal of kusuna kavyu — the licking of a heated knife — must first be completed, demonstrating the absolute seriousness of what follows. Both parties then swear over the kithitu, each declaring their truth, with the community’s understanding that the one who lies will face consequences that extend beyond any courtroom sanction.

In land disputes specifically, the ritual incorporates soil from the contested ground, binding the sacred to the physical reality of the claim. The accuser strikes the kithitu with a twig while reciting the grievance. Women and children cannot approach it. Its administration has always been attended by secrecy and danger. These are not the characteristics of a practice that exists merely for ceremony. They are the characteristics of a system that was designed to do what formal law aspires to do — extract truth and deliver accountability — but through a framework rooted in community belief rather than state authority.

Historical records show that kithitu was introduced precisely because the Kamba elders’ council, the Nzama, could be influenced by wealth and standing. When a powerful man stole from a poor one and the elders looked away, kithitu was the recourse that wealth could not neutralise. It was, in that original sense, an instrument of equity — a check on the powerful that the powerless could invoke when every other door had closed. That is exactly what Mzee Mulwa was reaching for in that Makueni courtroom. He is 85, terminally ill, in a wheelchair, facing eviction from land he has occupied for most of his adult life, with his wife buried in its soil. He has been in and out of court for forty years. He was not asking for kithitu out of ignorance of the formal system. He was asking for it because the formal system has had forty years to answer him and has not.

Kenya’s 2010 Constitution, widely regarded as one of Africa’s most progressive legal documents, explicitly recognises customary law as a legitimate source of applicable law, provided it does not conflict with constitutional provisions or statute. The National Cohesion and Integration Act and various legal reform frameworks have similarly acknowledged that traditional dispute resolution mechanisms have a role to play alongside formal courts, particularly in matters of land, inheritance and community relations where customary norms govern the social reality more accurately than imported legal frameworks. The constitution’s Article 159 specifically directs courts to be guided by the principle that justice shall be administered without undue regard to procedural technicalities — a provision that, in spirit at least, ought to create space for the kind of engagement that the Makueni magistrate declined.

Yet the gap between constitutional aspiration and courtroom reality remains vast. A magistrate who has never heard of kithitu is not an anomaly — he is representative of a system that was built on English common law foundations, trained in English legal tradition and equipped with English procedural tools. That system can reference customary law in its judgments, but it cannot practise it, cannot weigh it and cannot, it seems, even recognise it when an 85-year-old man invokes it in a desperate bid for resolution. The unfamiliarity is not the magistrate’s personal failing. It is a structural failure of legal education and judicial training in a country whose constitution tells courts to take tradition seriously but whose institutions were never redesigned to do so.

This matters enormously in a country where land conflict remains one of the most persistent sources of community tension, family fracture and political mobilisation. The Kenya National Land Commission has repeatedly documented the scale of unresolved land disputes across the country, particularly in regions where customary tenure systems and formal titling processes have operated in parallel for decades without ever being properly reconciled. In Ukambani, as in many parts of Kenya, land is held within the extended family, inherited according to customary norms and understood through lived memory and community witness rather than survey coordinates. When those disputes enter the formal court system, the translation is always imperfect and sometimes catastrophic — producing rulings that satisfy procedural requirements while leaving the underlying human reality unresolved.

Mzee Mulwa’s case is an extreme but not unique example of that catastrophe. Forty years. Multiple court appearances. A homestead visit. And still no resolution — only an adjournment to November, while a terminally ill man waits to find out whether he will die on his own land or be removed from it, and whether the grave of his wife will remain undisturbed.

The twig that Mzee Munywoki Kisese handed across that courtroom floor — signalling his family’s readiness to stand before kithitu — was perhaps the most legally significant gesture of the entire proceedings, even if the court lacked the framework to recognise it. It was an offer of truth on terms that both families understood and neither feared. It was the system working, in the only language the people involved had always trusted.

Kenya’s formal justice system said it did not speak that language. After forty years of watching it struggle with its own, Mzee Mulwa can be forgiven for thinking the time has come to try something older, and something the powerful have always had more reason to fear.

The hearing resumes in November. The land, and the grave within it, wait.

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