PWK v EWK [2024] KEHC 12146 (KLR) | Customary Marriage | Esheria

PWK v EWK [2024] KEHC 12146 (KLR)

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PWK v EWK (Civil Appeal 71 of 2023) [2024] KEHC 12146 (KLR) (Family) (8 October 2024) (Judgment)

Neutral citation: [2024] KEHC 12146 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Civil Appeal 71 of 2023

MA Otieno, J

October 8, 2024

Between

PWK

Appellant

and

EWK

Respondent

(Being an Appeal from the Judgment of Hon. Gitonga delivered on 19th July, 2023 in the Milimani Divorce Cause No. 23 of 2020)

Judgment

Introduction 1. This is an appeal from the decision of the lower court in the Milimani Divorce Cause No. 23 of 2023 in which the trial magistrate entered judgment and dismissed the Appellant’s divorce petition dated 14th January, 2020 wherein the Appellant had sought the dissolution of her marriage with the Respondent.

2. A brief background of the matter is that parties herein got married in 1998 under the Kikuyu customary law. During the subsistence of the marriage, the couple were blessed with one issue of marriage, a daughter, who was born on 2nd August 1998. At the time, the couple also constructed their matrimonial home at the Respondent’s parent’s home in Kenya where they lived together as husband and wife.

3. Sometime in 2008, the Respondent moved from Kenya and relocated to Missouri, United States of America (USA).

4. In 2011, the Petitioner and the minor joined the Respondent in the USA where they continued to live together until sometime early 2018 when the Respondent allegedly started being hostile towards the Petitioner and the minor. Due to the hostility, the Respondent in 2019 eventually moved out of the couple’s matrimonial home in the USA.

5. Following the disagreement, the Appellant, vide her Petition dated 14th January 2020, moved the lower court in the Milimani Divorce Cause No. 23 of 2020: PWK v EWK seeking the dissolution of the marriage between her and the Respondent.

6. In her Petition, the Appellant argued that as a result of the Respondent’s cruelty and willful neglect, the marriage had irretrievably broken down and was therefore one which needed to be dissolved by the court. The Appellant further stated that all attempts at reconciliation had been futile.

7. The Respondent entered an appearance and filed an Answer to the Petition and a Cross Petition dated April 9, 2020. In his defence, he asserted that his marriage with the Appellant (then a Petitioner) had been dissolved by a court of law in 2011, following his Petitiond for divorce in the Court of Jackson County, Kansas City, Missouri, USA (Missouri Court) and therefore, no marriage thereafter existed between them that could be dissolved by the trial court.

8. While admitting that he was indeed married to the Petitioner in July, 1998, it was the Respondent’s position at trial that at his behest, the marriage between the two had been dissolved on June 28, 2011, following the issuance of a decree nisi dissolving the marriage by the Missouri Court.

9. On July 19, 2023, the trial court issued its judgment, dismissing the Petition on the grounds that the Appellant failed to demonstrate the existence of a valid marriage under the Marriage Act, 2014. The trial magistrate noted that there was no evidence that the union had been registered as required under sections 96(2) and (3) of the Marriage Act, 2014 and therefore, no proof of the marriage was vailed to the trial court by the Petitioner in line with section 59(1) of the Act.

The appeal 10. Aggrieved by the lower court’s decision, the Appellant filed the instant Appeal vide his Memorandum of Appeal dated 6th September,2024 on the grounds that: -a.The Learned Trial Magistrate erred in law and in fact by dismissing the Appellant’s Petition for Divorce.b.The Learned Trial Magistrate erred in law and fact in failing to find that there was a presumption of Marriage between the parties.c.The Learned Trial Magistrate’s erred in law and fact in presuming that the non- registration of the marriage invalidated the existing marriage between the parties.d.The learned Trial Magistrate erred in law and fact in failing to consider the evidence presented to him by the parties.

Submissions 11. The appeal was canvassed by way of written submissions. The Appellant’s filed her submissions dated 22nd April 2024 whilst the Respondent filed his undated submissions on 18th March 2024.

12. In her submissions, the Appellant argued that the trial court erred in concluding that there was no marriage between her and the Respondent capable of dissolution under the Marriage Act, 2014, solely due to the lack of registration of the marriage. She contended that her marriage to the Respondent was celebrated and solemnized in July 1998 in Nairobi, Kenya, in accordance with Kikuyu customary law practices.

13. The Appellant maintains that the lower court's failure to recognize the existence of her marriage with the Respondent, solely due to its non-registration of the same under the Marriage Act, 2014, is contrary to the Constitution. She cites Articles 159(2)(d), which emphasizes the court's duty to administer justice without undue regard to procedural technicalities, and Article 259, which outlines how the Constitution should be interpreted.

14. The Appellant therefore prayed for a judgment of this court: -a.Setting aside of the whole of the lower court’s judgement in the Milimani Divorce cause No. 23 of 2020 together with all its consequential orders.b.A declaration that there existed a valid customary marriage between the Appellant and the Respondent.c.The Petition for dissolution of marriage by the Appellant against the Respondent be allowed.d.Costs of this Appeal.

15. On his part, the Respondent supported the lower court’s judgment asserting that as at the time the Appellant filed the Petition for divorce in 2020, there existed no marriage between him and the Appellant since the 1998 union had been dissolved way back in 2011 pursuant to a decree nisi issued by the Missouri Court on 28th June 2011. The Respondent claimed that following dissolution of the marriage, he moved on and married another wife, an American national, one E.P.O on 21st September 2011.

16. It was further the Respondent’s submissions that in any event, the trial court was right in its finding that the customary marriage between him and the Appellant was invalid for want of registration in line with Section 96 (2) and (3) of the Marriage Act, 2014 as read together with the Marriage (Customary Marriage) Rules 2017.

17. Consequently, the Respondent urged this court to dismiss the appeal with costs in his favour.

Analysis and determination 18. As this is a first appeal, this court has the duty to reassess and reevaluate the evidence presented in the subordinate court, considering both points of law and fact, and to reach its own findings and conclusions. See the decision of the Court of Appeal for East Africa in Peters v Sunday Post Limited [1958] EA 424. In conducting this review, the court must acknowledge that it did not have the opportunity to hear or observe witnesses firsthand, and therefore must make due allowance in that regard. This principle was set in Pandya v Republic [1957] EA 336, where the Court stated that: -“On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the Judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court different.”

19. The principle was again restated in Selle & Another v Associated Motor Boat Co. Ltd & Another (1968 (E.A. 123), where the court observed that; -“...I accept counsel for the respondent’s proposition that this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court from a trial court ......is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect..." [emphasis mine]

20. Again, the Court of Appeal in Abok James Odera T/A A.J Odera & Associates v John Patrick Machira T/A Machira & Co. Advocates [2013] eKLR, upheld the principle when it stated as follows-“This being a first Appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and re-analyze the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way.”

21. Having reviewed the memorandum of appeal, the pleadings, and the proceedings from the lower court, this court identifies the following two key issues for determination in this appeal: -a.Whether the Parties’ 1998 Customary Marriage is still valid marriageb.If the answer to (a) above is in the affirmative, whether the appellant established any of the two pleaded grounds for divorce, willful neglect and cruelty.

Whether the Parties’ 1998 Customary Marriage is still valid marriage 22. Before I delve into the factual aspects of the case, it is critical that I first lay out the legal framework governing customary marriages in Kenya. The Marriage Act, 2014 defines marriage under section 3 (1) thereof in the following words: -“Marriage is the voluntary union of a man and a woman whether in a monogamous or polygamous union and registered in accordance with this Act. [emphasis added].

23. Depending on the law, custom or religion under which they are celebrated, section 6 Marriage Act, 2024 recognizes five different types of marriages which are registrable under the Act in the following words:“6. (1)A marriage may be registered under this Act if it is celebrated; -a.in accordance with the rites of a Christian denomination;b.as a civil marriage;c.in accordance with the customary rites relating to any of the communities in Kenya;d.in accordance with the Hindu rites and ceremonies; ande.in accordance with Islamic law.

24. A review of the aforementioned legal provisions reveals that the Act places emphasis on the fact of registration of marriages. According to section 3 of the Mariage Act, for a "voluntary union between a man and a woman"—regardless of whether it is Christian, civil, customary, Hindu, or Islamic—to be recognized as a marriage under the Act, the union must first be registered.

25. It may therefore be argued, as the Respondent submitted in this case (and as was found by the lower court), that where a marriage recognized under section 6 of the Act is not registered under the Act, then such a union, despite having been validly contracted, and notwithstanding such recognition by the Act, cannot legally be termed as a marriage under the Act.

26. Regarding customary marriages, section 43 of the Act defines a "customary marriage" as one celebrated according to the customs of the communities of one or both parties. It specifies that if dowry is essential for proving a marriage under customary law, the payment of a token amount shall suffice as proof. Section 44 requires parties to a customary marriage to notify the Registrar within three months of completing the relevant ceremonies. Additionally, under section 55, parties must within six months of completion of the customary rituals, apply to the Registrar for registration of the marriage and issuance of a certificate thereof.

27. It is important to note that the requirements for notice to the Registrar under section 44 and the subsequent application for registration under section 55 of the Act applies only to customary marriages contracted after the Marriage Act, 2014 came into effect on May 20, 2014. For marriages contracted prior to the commencement of the Act, section 96 governs the registration of such marriages.

28. Section 96 (2) and (3) which is the transitional provision of the Act mandates parties to a customary marriage contracted prior to the commencement of the Act to apply for registration within three years of the Act coming into effect, initially, by May 20, 2017. However, following the promulgation of the Marriage (Customary Marriage) Rules 2017, which came in force vide Gazette Notice Number 5345 of June 9, 2017, this period was extended by an additional three years’ period, allowing all marriages contracted prior to May 20, 2014 to be registered by August 1, 2020.

29. In view of the above, what then would be the status of a customary marriage validly contracted prior to the enactment of the Marriage Act, 2014, but not registered under the Act by the August 1, 2020 deadline? Would such a marriage be invalid for want of registration as was found by the lower court in the instant case? In my view, this cannot be the correct position in law.

30. Section 98 of the Act which is the savings provisions of the Act is explicit that it protects all valid marriages (customary marriages included) existing prior to the commencement of the Act. The section states that: -“98. (1)A subsisting marriage which under any written or customary law hitherto in force constituted a valid marriage immediately before the coming to force of this Act is valid for the purposes of this Act.”

31. From the above, it is clear that it was not the intention of the Act to invalidate marriages contracted prior to the Act coming into force, non-registration of such marriages under the Act notwithstanding. A contrary interpretation, would in my view lead to an absurdity and be against public interest. I fully align myself with my sister, Lady Justice H.N. Namisi in JTO v AP (Appeal E128 of 2022) [2024] KEHC 10464 (KLR), where she stated that:“27. Turning back to the issue at hand, it would be ludicrous to inform two individuals who have lived together for the better part of their adult lives, gone through the rituals of a supposed marriage, held themselves out as husband and wife, borne 3 children and generally suffered and enjoyed the ebbs and lows of life together, that their union is not considered a marriage simply because they failed to register the same and get a certificate. Consequently, due to this lack of registration, the doors of the court are closed to them at the point when they wish to bring their union to an end…”

32. It would obviously yield to an absurd result and therefore an unintended consequence of the legislation, if Sections 3 of the Marriage Act, 2014 as read together with Section 96(2) and (3) of the same Act were to be interpreted to mean that all unregistered marriages validly contracted prior to the commencement of the Act (May 20, 2024) became invalid after August 1, 2020 solely due to the failure by the parties to register them under the Act.

33. In Centre for Rights Education and Awareness & another v John Harun Mwau & 6 others [2012] eKLR, the Court of Appeal emphasized on the rule against absurdity in statutory interpretation when it stated that:“(21)I now turn to the consideration of the appeal.Before the High Court embarked on the interpretation of the contentious provisions of the Constitution, it restated the relevant principles of interpretation of the Constitution as extracted from case law thus: - that as provided by Article 259 the Constitution should be interpreted in a manner that promotes its purposes, values and principles; advances rule of law, human rights and fundamental freedoms and permits development of the law and contributes to good governance.

that the spirit and tenor of the Constitution must preside and permeate the process of judicial interpretation and judicial discretion.

that the Constitution must be interpreted broadly, liberally and purposively so as to avoid “the austerity of tabulated legalism.”

that the entire Constitution has to be read as an integrated whole and no one particular provision destroying the other but each sustaining the other as to effectuate the great purpose of the instrument (the harmonization principle).These principles are not new. They also apply to the construction of statutes. There are other important principles which apply to the construction of statues which, in my view, also apply to the construction of a Constitution such as presumption against absurdity – meaning that a court should avoid a construction that produces an absurd result; the presumption against unworkable or impracticable result - meaning that a court should find against a construction which produces unworkable or impracticable result; presumption against anomalous or illogical result, - meaning that a court should find against a construction that creates an anomaly or otherwise produces an irrational or illogical result and the presumption against artificial result – meaning that a court should find against a construction that produces artificial result and, lastly, the principle that the law should serve public interest –meaning that the court should strive to avoid adopting a construction which is in any way adverse to public interest, economic, social and political or otherwise…..” [Emphasis added]

34. In light of the above and guided by the established principle that the law must serve the public interest and that a statute should not be interpreted to produce absurd results, I find and hold that the Kikuyu customary marriage conducted by the parties herein in July 1998 was not invalidated merely because it was not registered by August 1, 2020 by the parties, as stipulated under sections 96(2) and (3) of the Marriage Act, 2014 as read together with the Marriage (Customary Marriage) Rules 2017.

35. To reach a contrary conclusion in my view would obviously be against public interest and run afoul of Article 45 of the Constitution which recognizes the family as the natural and fundamental unit of the society which should at all times be recognized and protected by the State.

36. In any event, the lower court record clearly shows that the fact of marriage was not contested. Both parties explicitly admitted in their respective pleadings and submissions that they were married under the Kikuyu Customary law in July 1998. Consequently, it was therefore in my view not necessary for the trial court to resort to section 59(1) of the Act on the proof of marriage. This provision of the law would in my view only become useful in instances where there is a dispute as to the fact of marriage.

37. In this case, the fact of marriage was admitted by both parties. Section 61 of the Evidence Act, provides as follows in relation to admitted facts; -“No fact need be proved in any civil proceeding which the parties thereto or their agents agree to admit at the hearing, or which before the hearing they agree, by writing under their hands, to admit, or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings: Provided that the court may in its discretion require the facts admitted to be proved otherwise than by such admissions”

38. Having found that the customary marriage between the Appellant and the Respondent was not invalidated by lack of registration under the Act, it is now necessary that I proceed and deal with the Respondent’s allegation that the marriage between him and the Appellant ceased to exist, having been dissolved on 28th June 2011 by the Missouri Court.

39. At the outset, it is critical to note that the trial court did not make any finding on the Respondent’s prayer in his Counter-Claim to have the 28th June 2011 decree nisi issued by the Missouri Court adopted. According to the trial court, having found that the marriage between the parties had been invalidated for want of registration under the Act, it was therefore not necessary for the court to proceed any further on the matter.

40. In his Answer to Petition and Cross-Petition dated 9th April 2020, the Respondent averred that following his petition for divorce against the Appellant at the Circuit Court of Jackson County, Kansas City, Missouri, USA, a decree nisi was issued by the court on 28th June 2011 dissolving the marriage between him and the Appellant. Consequently, the Respondent prayed that the said decree nisi issued by a foreign court be adopted by the trial court and that following its adoption, a declaration be made by the trial court that as from the date of the said decree nisi, the 1998 customary marriage between him and the Appellant stood dissolved.

41. It was further the Respondent’s prayer at the trial court that his marriage with the Appellant having been dissolved in June 2011, there no marriage then subsisting capable of being dissolved by the court.

42. Additionally, the Respondent, in his testimony of 12th April 2023 told the trial court that the Appellant was well aware that the marriage between her and the Respondent had been dissolved by the Missouri Court and that that informed the reason why the Appellant, in her application for Green Card to the USA, indicated her marital status as “Single”.

43. In her Reply to the Respondent’s Cross Petition dated 9th September 2022, the Appellant denied knowledge of any previous divorce proceedings between her and the Respondent, either in Kenya or elsewhere, particularly the one which was allegedly instituted by the Respondent against her at the Circuit Court of Jackson County, Missouri in 2011.

44. According to the Appellant, she only joined the Respondent in USA in August 2011 and therefore was not in the USA in early 2011 when divorce proceedings were allegedly instituted by the Respondent against her in the Missouri Court, and more particularly in June 2011 when the decree nisi was allegedly issued by the court. That she was not served with the proceedings and was therefore not aware of the same.

45. It is not for this court to inquire into the propriety or otherwise of the divorce proceedings allegedly instituted by Respondent against the Appellant in the Missouri Court. The question as to whether the Appellant was not duly served and therefore unaware of the divorce proceedings in the Missouri Court can only be handled by that court, upon an application being made by the Appellant for that purpose.

46. The question for this court however is whether the alleged decree, having been issued by a foreign court, can legally be recognized in Kenya.

47. Section 67 of the Marriage Act, 2014 deals with recognition in Kenya of decrees granted in matrimonial proceedings by foreign courts. The section provides as follows; -“67. Where a foreign court has granted a decree in matrimonial proceedings whether arising out of a marriage celebrated in Kenya or elsewhere, that decree shall be recognized in Kenya if—a.either party is domiciled in the country where that court has jurisdiction or had been ordinarily resident in Kenya for at least two years immediately preceding the date of institution of proceedings;b.being a decree of annulment, divorce or separation, it is effective in the country of domicile of the parties or either of them.

48. The Respondent in his Cross-Petition dated 9th April 2020 urged the trial court to adopt the Decree Nisi issued on 28th June 2011 by the Missouri Court. That upon adoption of the decree, a finding be made by the trial court that the marriage between the Respondent and the Appellant stood dissolved as at the date of the decree and consequently, there no longer existed any marriage between the parties capable of being dissolved by the court.

49. I have looked at the Respondent’s Cross-Petition dated 9th April 2020, the verifying affidavit of even date and the Respondent’s sworn statement dated 14th April 2020 in support thereof. I note that exhibit “EWK 1” attached to the Respondent’s statement in support of the Cross-Petition herein is a copy of the “judgement Decree Of Dissolution Of Marriage” issued by the Circuit Court of Jackson County, Missouri, USA. The said Judgment which is dated 28th June 2011 reads in part as follows; -“The Respondent having been served by four consecutive weekly publication in The Independence Examiner, a periodical of general circulation in Jackson County, Missouri, appears not but made default:1. Petitioner has been resident in the State of Missouri in excess of ninety days immediately proceeding the filing of the Petition for Dissolution of Marriage and presently resides at xxxxxxxxxxx, Missouri xxxxxx2. The Respondent has been resident in the State of Unknown in excess of ninety days immediately preceding the filing of the Petitioner’s Petition for Dissolution of Marriage and presently resides at Unknown.3. The Petitioner’s Social Security number is xxx-xx-0876 and Respondent’s Social Security number is……….4. The Petitioner and Respondent were married in May 18, 1996 in the Country of Kenya, City of Nairobi and the marriage was registered therein…” [Emphasis added]

50. Section 67 of the Marriage Act, 2014 allows for the recognition in Kenya of decrees granted in matrimonial proceedings by foreign courts. See the case of IWN v HJC [2021] eKLR where M. Odero J stated as follows regarding recognition in Kenya of foreign judgments issued in matrimonial proceedings; -“(9).From its wording Section 67 envisages the recognition of all foreign judgments relating to matrimonial proceedings without there being the need to demonstrate reciprocity. All that is required is that there be evidence to show that either party was domiciled in the country where the Decree was made and that the Court which issued the Decree had jurisdiction to do so. Secondly it must be shown that the Decree of annulment, divorce or separation was effective in the country of domicile.

(10).From the material availed to Court the Divorce Decree in question was issued in Germany. (A copy of the Decree is Annexture ‘IN’ to the Notice of Motion dated 21st February 2021). This Court has no reason to doubt that the Court in Germany had requisite jurisdiction to issue the said Decree. The Applicant averred that after the solemnization of the marriage in Mombasa, she moved to live with her spouse in Germany where the couple resided for over five (5) years and were therefore ‘domiciled’ in Germany. To that extent the divorce orders issued in Germany are recognizable by the Kenya Courts.”

51. However, for such a decree or judgment to be recognized in Kenya, it is critical that a sound and plausible basis must first be laid by the party seeking for its recognition.

52. In the instant case, while the Respondent seeks the recognition of the decree nisi dated 28th June 2011 issued by the Missouri Court, the other party (the Appellant herein) is disputing that such a decree was ever issued by the foreign court. According to Appellant, she was never served by the proceedings leading to the issuance of the subject decree and was therefore not aware of the same.

53. The Appellant testified and led evidence before the trial court to the effect that by the time the divorce proceedings were allegedly commenced by the Respondent against her in the USA up to the time the judgment was issued in June 2011, she had not set foot in the USA. That she only joined the Respondent in the USA in August 2011. In short, the Appellant denied being part of the USA divorce proceedings. She also averred that to the best of her knowledge, there were no such proceedings and that no such decree was issued against her by the Missouri Court.

54. It is an established principle is that whoever desires any court to give judgment as to any legal right or liability, dependent on the existence of fact which he asserts, must prove that those facts exist. The burden of proof in a suit or proceeding, lies on that person, who fail if no evidence at all were given on either side, See also (Section 107 of the Evidence Act). in civil cases, the standard of proof is on a balance of probability.

55. The Respondent at Paragraph 9 of his sworn statement dated 14th April 2020 in support of Cross-Petition stated that the Appellant relocated to the USA in September 2011. It is important to note that this was almost three months after the alleged decree nisi was issued by the Missouri Court.

56. Additionally, a perusal of a copy of the judgment from the Missouri Court attached by Respondent in his pleadings reveals that the Appellant had allegedly been served with the divorce papers via The Independence Examiner, a periodical of general circulation in Jackson County, Missouri and that she had been a resident of the USA for a period in excess of ninety days immediately preceding the filing of the Petitioner’s Petition for Dissolution of Marriage.

57. Taking into account that the Appellant arrived in the USA in August 2011, it is not possible that she had been a resident of the USA for a period in excess of ninety days as at 28th June 2011 when the decree was issued by the Missouri Court. Further, this would equally bring into doubt whether the service of the pleadings by way of publication in a periodical of general circulation in Jackson County, Missouri was effective service.

58. In view of the above and taking into account that burden of proof in this case was on the Respondent, I find that no solid basis has been laid by the Respondent to make this court recognize and adopt the foreign decree allegedly issued by the Missouri Court on 28th June 2011.

59. Further, there was no evidence on record that the foreign decree was registered in Kenya pursuant to the provisions of section 61 of the Marriage Act, 2014 which allows the registration of foreign decrees annulling or dissolving marriages celebrated in Kenya. The section provides that; -“61. (1)Where a marriage celebrated in Kenya is annulled or dissolved by a decree of a foreign court, any party to the annulled or dissolved marriage may apply to the Registrar to register the decree.(2)Where the Registrar is satisfied that a decree under this section should be recognised in Kenya as if the decree was made by a Kenyan court, the Registrar shall register the decree in a register maintained for the purpose.(3)An application under this section shall include—(a)a copy of the decree and where the decree is not in an official language, a certified translation of the decree in an official language and in the prescribed form; and(b)a declaration under the law of the country in which the decree was obtained made to a legal practitioner authorised to witness such a declaration that states the decree is effective in that country as if the marriage had been celebrated in that country.”

60. Accordingly, having found no reasonable basis for the recognition of the foreign decree issued in the Missouri Court, I find and hold that the Kikuyu customary law marriage conducted in 1998 between the Appellant and the Respondent is still valid.

61. Further, even assuming the 1998 Kikuyu customary marriage between the parties herein had been dissolved in June 2011 as alleged by the Respondent, the subsequent cohabitation of the parties for a period of 8 years (August/September 2011 to November 2019) was long enough to raise a presumption of a fresh marriage between the parties.

62. In MNK v POM; Initiative for Strategic Litigation in Africa (ISLA) (Amicus Curiae) [2023] KESC 2 (KLR), the Supreme Court stated that a long cohabitation as a man and a wife gives rise to a presumption of marriage in favour of the party asserting it and that this may only be rebutted by was of strong and cogent evidence. The apex court stated as follows; -“47. The presumption of marriage was first applied in Kenya in Hortensia Wanjiku Yawe v The Public Trustee Nairobi [1976] eKLR……………..…………….v.Long cohabitation as a man and a wife gives rise to a presumption of marriage in favour of the party asserting it;v.Only cogent evidence to the contrary can rebut the presumption (Toplin Watson v Tate [1937] 3 All ER 105

63. The Appellant in his memorandum of appeal stated that the trial court erred in law and in fact in failing to find that there was a presumption of marriage between the parties. She stated in her evidence before the trial court that when she joined the Respondent in the USA in August 2011, they lived together in the same house as a family consisting of wife, husband and child until November 2019 when she was force to move out of their matrimonial home due to cruelty by the Respondent.

64. It was further the Appellant’s evidence that for the period that they lived together with the Respondent in America, they carried themselves out as husband and wife and that she endeavoured to provide for their family by taking necessary insurances, taking care of the home by providing food and clothing, paying rent and that at some point, she even gave the Respondent money for the purposes of purchasing a matrimonial property in Kenya. The Appellant attached to her affidavit in support of the Petiton copies of receipts showing the transaction as annex “PWK 2”.

65. The Respondent on the other hand, while admitting that he lived with the Appellant in the same house between 2011 and 2019 in the USA, denied that they lived as husband and wife. According to the Respondent, he only hosted the Appellant and their daughter to make it easy for them to settle down in the USA. That he allowed the Appellant to drive his car for ease of her movement to and from work. That for the period they lived together in the USA, he was still solely responsible for their food, rent, gas, electricity, insurance and general upkeep. He annexed as exhibit “EWK 4” copies of his credit card statements and receipts in support his arguments.

66. Marriage by presumption essentially turns on the evidence adduced by the parties. In WN v DK ([2021] KEHC 12535 (KLR) Ngaah J. stated that; -“As far as presumption of marriage is concerned, it is a status of relationship that turns much on evidence as much as it is a presumption of law. According to Halsbury's Laws of England/Matrimonial And Civil Partnership Law (volume 72 (2009) 5th Edition, Para 6, where a man and a woman have cohabited for such a length of time, in such circumstances, as to have acquired the reputation of being man and wife, a lawful marriage between them will be presumed even if there is no prior evidence of any marriage ceremony having taken place.”

67. Having keenly reviewed the evidence adduced by the parties and taking into account the Appellant and the Respondent lived together in the same house for a period of over eight years and conducted their business as husband and wife, I am inclined to find that the marriage by presumption since the parameters set by the Supreme Court in MNK v POM (supra) on presumption of marriage have been met.

68. In the circumstances I find that the trial court erred in finding that the 1998 Kikuyu customary law marriage between the Appellant and the Respondent was rendered invalid for want of registration under Section 55 of the Marriage Act, 2014 as read together with section 96 (2) and (3) of the same Act.

Whether the grounds for divorce have been established 69. For customary marriages, Section 68 of the Marriage Act, 2014 provides that parties may undergo a process of conciliation or customary dispute resolution before the court may determine a petition for the dissolution of the marriage. The Section provides as follows; -“(1)The parties to marriage celebrated under Part V may undergo a process of conciliation or customary dispute resolution before the court may determine a petition for the dissolution of the marriage.(2)The process of mediation or traditional dispute resolution in subsection (1) shall conform to the principles of the Constitution.(3)The person who takes the parties to a marriage celebrated under Part V through the process of conciliation or traditional dispute resolution shall prepare a report of the process for the court.”

70. Section 69(1) of the Marriage Act, 2014 lists the following as grounds for which a party to customary law marriage may seek a dissolution of that marriage; -a.adultery;b.cruelty;c.desertion;d.exceptional depravity;e.irretrievable breakdown of the marriage; orf.any valid ground under the customary law of the petitioner.

71. The Petition, as can deduced from the pleadings is based on cruelty and willful neglect on the part of the Respondent. In his Answer to the Petition and Cross-Petition, it is clear that Respondent also alleges cruelty on the part of the Petitioner. However, for the Respondent, he is not in the instant proceedings asking for the marriage to be dissolve. According to him, the marriage had been dissolved way back in June 2011.

72. The first thing for this court will be to determine whether the Appellant discharged the burden of proof placed on her by law to the required standard so as to warrant the issuance of the divorce orders sought in the Petition.

73. It is trite that the burden of proof was on the Appellant to prove her case at trial. In Evans Nyakwana -vs- Cleophas Bwana Ongaro (2015) eKLR it was stated by the Court that: -“As a general preposition the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. That is the purport of Section 107(i) of the Evidence Act, Chapter 80 Laws of Kenya. Furthermore, the evidential burden … is cast upon any party, the burden of proving any particular fact which he desires the court to believe in its existence. That is captured in Section 109 and 112 of law that proof of that fact shall lie on any particular person….”

74. In divorce matters, just like in all other civil proceedings, the standard of proof required is that on a balance of probability. In the case of SCC Vs MK [2012] eKLR the court cited the case of Kamweni Vs Kamweru [2000] in which the Court of Appeal gave guidelines as to proof of cruelty and desertion: -“Applying the yardstick of the burden and standard of proof as set out above we would say that the feelings of some certainty by court, that is being satisfied as to be sure; means being satisfied on preponderance of probability. Certainly, cruelty or desertion may be proved by a preponderance of probability, that is to say that the court ought to be satisfied as to feel sure that the cruelty or desertion, or even adultery (all being matrimonial offences) has been (as the case may be) established.”

75. While the Court of Appeal in the Kamweru case was dealing with the then section 10 of the Matrimonial Causes Act (Cap.152 of the Laws of Kenya), which has since been repealed and replaced by the Marriage Act, 2014, it is undoubtedly clear that the standard of proof remains the same and is still applicable and remains relevant in divorce matters as the case herein.

76. In her Petition dated 14th January 2020 before the trial court, the Appellant sought for dissolution of the marriage on the basis of what she alleged to be willful neglect and cruelty on the part of the Respondent as particularized under paragraphs 12 and 14 of the Petition.

77. It now falls on this court to reevaluate the evidence tendered by the Petitioner in the lower court with a view of establishing whether any of the grounds relied on by the petitioner as the basis of her petition for divorce have been proven in evidence.

78. In her testimony before the trial court on 12th April 2023, the Appellant adopted in evidence her petition dated 14th January 2020 and the affidavit in support thereof. The Appellant told court that sometime in early 2018, the Respondent started being hostile towards the Petitioner and the minor and that in 2019, he subsequently kicked them out of their matrimonial home in Missouri, USA without any notice or consideration. That the Respondent neglected to provide companionship, love care and affection towards the Petitioner, including failing to provide the Appellant’s physical needs and conjugal rights.

79. It was further the Appellant’s case in the lower court that during the subsistence of their marriage, she discovered that the Respondent had strayed out of the matrimonial bed and committed adultery. That prior to kicking out the Petitioner from their matrimonial home, the Respondent totally abandoned any and all financial responsibilities of the house leaving the Petitioner to solely fend for the family which took a toll on her.

80. The Appellant therefore pleaded that her marriage to the Respondent was irretrievably broken down and is a sham devoid of any belongings and therefore one which warranted to be dissolved by this court and decree in that regard be issued. The Appellant stated that she tried reconciliation but that the same failed to work.

81. In response to the Petition, the Respondent filed his Answer to Petition and Cross petition in 9th April 2020. While admitting in evidence that he had contracted a customary marriage with the Appellant in July 1998 under the Kikuyu customary law, the Respondent denied that they lived happily together thereafter. It was the Respondent’s case that the Appellant was a very difficult person to live with and quarreled his parents; was rude, disrespectful and quite insulting to the extent that the Respondent developed ill health during the marriage. That it was due to the Appellant’s lack of respect and quarrelsome behavour that made the Respondent ask her to leave their matrimonial home in Missouri, USA.

82. The Respondent asserted that it is the Appellant who was guilty of cruelty and as a result, he had petitioned for divorce against the Appellant in 2011 in the Circuit Court of Jackson County, Kansas City, Missouri, USA and on 28th June 2011, the court issued a decree nisi dissolving their marriage. That following the divorce, the Respondent on 21st September 2011 moved on and married another woman, one E.L.O, an American national.

83. Consequently, the Respondent urged the trial court to dismiss the Petition against him with costs and instead adopt the decree nisi issued by the Circuit Court of Jackson County, Kansas City, Missouri, USA on the 28th June 2011 dissolving the marriage between him and the Appellant.

84. From the above, I have no doubt in my mind that the had proved on the balance of probability before the trial court the grounds of cruelty and willful neglect as demonstrated in the foregoing analysis of the evidence. In fact, the Respondent confirms in his evidence that he has moved on and married another woman.

85. It is therefore apparent that the marriage between the Appellant and the Respondent has irretrievably broken down and may not be resuscitated at this point. See the case of MNM VS SJC Divorce Cause No. 1 of 2013 where the court stated that: -“It has all along been apparent that the marriage between the two has irretrievably broken down such that any attempt to give them time to resolve their marital problems by sustaining it would cause both of them untold anxiety and/or psychological torture. It is in their own interest and the interest of justice that the marriage be dissolved and they be allowed to move on with their respective lives….”

86. Accordingly, it is my considered view that the marriage between the parties had gone beyond repair and it was in the interests of justice that it be dissolved.

87. I hereby set aside the judgment of the trial court and substitute it with judgment in favour of the appellant that the marriage between the parties be and is hereby dissolved.

88. It is ordered that a decree nisi do issue.

89. The appeal is hereby allowed with costs to the Appellant.

90. It is hereby so ordered.

SIGNED DATED AND DELIVERED IN VIRTUAL COURT 8TH DAY OF OCTOBER 2024ADO MOSESJUDGEIn the presence of:Moses – Court Assistant……….. for the Appellant.…………. for the Respondent.