Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
MagistrateDismissedDivorce Petition dated 9th March 2022· [2023] KEMC 97 (KLR)

RK v SWK (Divorce Cause E301 of 2022) [2023] KEMC 97 (KLR)

Magistrates' Court (Family Division)
13 February 2023
1,572 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

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

#
The petitioner RK petitioned for divorce from the respondent SWK on grounds of cruelty and adultery, alleging a customary marriage celebrated in January 2017 under Kamba and Kikuyu customary law but never registered, and seeking dissolution of the marriage, legal and actual custody of the three children of the cohabitation, and costs. The parties cohabited intermittently between 2010/2011 and 2021, were domiciled in Kenya, and the respondent had lawfully married another woman in 2015. The respondent opposed the petition on the ground that no marriage existed between the parties. The court framed two issues: whether a marriage properly so called existed and how the parties could part ways, and who should bear costs. Applying sections 3, 44, 55 and 59 of the Marriage Act 2014 and section 119 of the Evidence Act, and the authorities CWN v DK, Joseph Gitau Githongo v Victoria Mwihaki and Hotensiah Wanjiku Yahweh v the Public Trustee, the court held that presumption of marriage is a question of fact subject to requisite proof; no expert testified on the customary marriage; the union was never registered as required, and no evidence of a marriage under section 59 existed. The fact of marriage was therefore not proved on a balance of probabilities. The petition was dismissed, with each party bearing own costs; the parties were told to register any customary marriage before filing for divorce, and custody questions were left to the pending Children's Court suit MCCHCC/E331/2022.

Key legal issues

#
01

Whether a valid marriage existed between the parties

Holding

No marriage was proved; the alleged customary marriage was not registered and was not proved on a balance of probabilities

Reasoning

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.

p. 3
02

Whether the court could presume a marriage by long cohabitation and repute

Holding

Presumption of marriage is a question of fact subject to requisite proof, and neither party invited the court to presume a marriage

Reasoning

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.

p. 3

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. 1.Dismissal of the petition dated 9th March 2022
  2. 2.Each party to bear own costs
  3. 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. 4.The petitioner to pursue any appropriate reliefs regarding prayer (b) on custody before the Children Court in suit MCCHCC/E331/2022

Authorities

#

Legislation

  • Marriage Act 2014section 2 (definition of cohabit)
  • Marriage Act 2014section 3
  • Marriage Act 2014section 44
  • Marriage Act 2014section 55
  • Marriage Act 2014section 59
  • Marriage Act 2014section 96(2) and (3)
  • Evidence Actsection 119

Cases cited (3)

  • CWN v DK
    [2021] e KLR
  • Joseph Gitau Githongo v Victoria Mwihaki
    [2014] eKLR
  • Hotensiah Wanjiku Yahweh vs the Public Trustee
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.