VAO v KAKN (Divorce Cause E1270 of 2022) [2023] KEMC 208 (KLR)
The bottom line
#A Kenyan court dismissed a divorce petition because the couple's customary marriage was never registered, so legally no marriage existed to dissolve.
What this practically means
#Executive summary
#Key legal issues
#Whether a valid or presumable marriage existed between the parties
No marriage was proved: the customary marriage solemnized on 28th August 2010 was never registered under sections 3, 44 and 55 of the Marriage Act, no expert evidence (elders, chiefs or relatives) was called, and no marriage under section 59 was shown; nor did either party seek a presumption of marriage.
The court considered section 119 of the Evidence Act on presumption of facts, and section 2 of the Marriage Act defining cohabitation. It relied on CWN vs DK and Joseph Gitau Githongo v Victoria Mwihaki on presumption of marriage. Since the union was unregistered and unproven through expert testimony, the fact of marriage was not proved on a balance of probabilities. Consequently the cohabitation is not a marriage and divorce cannot be granted.
Costs
Although costs follow the event, as a family matter each party was ordered to bear their own costs.
The court noted the settled principle that costs follow the event but exercised discretion given the family nature of the proceedings, ordering each party to bear their own costs.
Legal principles established
#- A marriage by long cohabitation and repute can only be recognized under the Marriage Act by way of registration of the union.
- Presumption of marriage is a question of fact subject to requisite proof, and unregistered customary marriages require proof such as expert testimony.
- Facts must be proved on a balance of probabilities; failure to register a customary marriage as required by sections 3, 44 and 55 of the Marriage Act means no marriage is proved.
Court orders
#- 1.Petition dated 21st October 2022 is dismissed
- 2.Each party to bear own costs
- 3.Either party is at liberty to apply for registration as under section 3, 44 and 55 of the Marriage Act
- Jurisdiction invoked
- Sections 3, 44, 55 and 59 of the Marriage Act 2014
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "VAO v KAKN (Divorce Cause E1270 of 2022) [2023] KEMC 208 (KLR)", Case Analysis (2023). Petition dated 21st October 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2023/208/eng@2023-06-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.