SML v RKM (Divorce Cause E016 of 2023) [2023] KEMC 38 (KLR)
The bottom line
#A Kenyan court dismissed a divorce petition because the couple's long-term relationship was never proven to be a legally recognized marriage.
What this practically means
#Executive summary
#Key legal issues
#Whether a marriage existed between the parties, whether by presumption of long cohabitation or under Meru Customary Law
No marriage was proven; the alleged customary marriage was not proved on a balance of probabilities as no expert witness on Meru customs testified, and there was no evidence of registration under sections 3, 55, 59 and 96 of the Marriage Act.
The petitioner asked the court to presume a marriage by long cohabitation and to declare a Meru customary marriage, then grant a divorce. The court noted presumption of marriage is a question of fact requiring proof. The petitioner's statement did not call any expert witness on Meru customs, and no registration of the union under the Marriage Act was evidenced, as required by sections 3, 55, 59 and 96(2) and (3). Both facts therefore failed on a balance of probabilities.
Whether a decree of divorce could issue in respect of an unregistered cohabitation
No; the proper course is first to apply for registration of the cohabitation under sections 3 and 96(2) and (3) of the Marriage Act before filing a petition for divorce.
The court found that although long cohabitation and repute may be recognized, recognition occurs only through registration under the Marriage Act. Parties cohabiting before 2014 had a 3-year window to register under section 96(2) and (3), which neither party used. Having found no proven marriage, the court dismissed the petition but left the parties liberty to seek registration before filing any fresh divorce petition.
Legal principles established
#- Presumption of marriage is a question of fact subject to requisite proof, and a long cohabitation union can only be recognized under the Marriage Act by way of registration.
- Parties who cohabited before the commencement of the Marriage Act, 2014 were required to apply for registration of the union within 3 years of commencement; an unregistered cohabitation cannot ground a divorce petition.
Court orders
#- 1.The petition dated 05th January 2023 is dismissed
- 2.No order on costs
- 3.Either party is at liberty to apply for registration as under section 3 and section 96(2) and (3) of the Marriage Act before a petition for divorce can be filed
- Jurisdiction invoked
- Sections 3, 55, 59 and 96(2) and (3) of the Marriage Act, 2014 (divorce jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "SML v RKM (Divorce Cause E016 of 2023) [2023] KEMC 38 (KLR)", Case Analysis (2023). Petition dated 05th January 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2023/38/eng@2023-11-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.