RK v SWK (Divorce Cause E301 of 2022) [2023] KEMC 97 (KLR)
The bottom line
#A Nairobi court dismissed a divorce petition because the couple's customary marriage was never registered, so there was legally no marriage to dissolve.
What this practically means
#Executive summary
#Key legal issues
#Whether a valid marriage existed between the parties
No marriage was proved; the alleged customary marriage was not registered and was not proved on a balance of probabilities
The court noted that section 3 of the Marriage Act requires registration of unions, section 55 requires application for registration within 6 months of completing customary rituals (with a 3-year allowance under section 96(2) and (3) for pre-2014 cohabitations), and no evidence of a marriage under section 59 existed. No expert witness testified on the customary marriage. Accordingly, the fact of marriage was not proved on a balance of probabilities.
Whether the court could presume a marriage by long cohabitation and repute
Presumption of marriage is a question of fact subject to requisite proof, and neither party invited the court to presume a marriage
Section 119 of the Evidence Act permits presumption of facts, and Joseph Gitau Githongo v Victoria Mwihaki recognises presumption of marriage arising from long cohabitation. However, the court held that such a presumption is a question of fact requiring proof, and here neither party expressly sought presumption; the cohabitation could only be recognised via registration under the Marriage Act.
Legal principles established
#- Presumption of marriage is a question of fact, subject to requisite proof
- A marriage by long cohabitation and repute can only be recognized under the Marriage Act by way of registration of the union
- A party must first register a customary marriage under sections 3, 44 and 55 of the Marriage Act before filing a divorce petition
Court orders
#- 1.Dismissal of the petition dated 9th March 2022
- 2.Each party to bear own costs
- 3.Either party to apply for registration of customary marriage as under section 3, 44 and 55 of the Marriage Act before a petition for divorce can be filed
- 4.The petitioner to pursue any appropriate reliefs regarding prayer (b) on custody before the Children Court in suit MCCHCC/E331/2022
- Jurisdiction invoked
- Divorce jurisdiction under the Marriage Act 2014 (sections 3, 44, 55 and 59)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "RK v SWK (Divorce Cause E301 of 2022) [2023] KEMC 97 (KLR)", Case Analysis (2023). Divorce Petition dated 9th March 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2023/97/eng@2023-02-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.