EMM v PMK (Divorce Cause E023 of 2023) [2024] KEMC 11 (KLR)

Section 96(2) & (3) required parties to pre-Act customary marriages to register them within three years, extended by Gazette Notice to July 31, 2020. Section 12(e) provides that failure to register renders a marriage voidable. A voidable marriage remains valid until annulled by a competent court, so parties may only petition for annulment under section 73, not dissolution under section 69.

Since neither party exhibited the documentary evidence contemplated by section 59 (certificate of marriage, certified copy, or register entry), the marriage was voidable from August 1, 2020. A voidable marriage subsists until annulled, so the available remedy is a petition for annulment under section 73, and the divorce petition and cross-petition are incompetent.

The Hottensiah principles (including presumption of marriage from long cohabitation) predated the Marriage Act. Section 3 now defines marriage as one registered under the Act, and section 59 restricts acceptable proof of marriage to documentary evidence of registration. Therefore, effective August 1, 2020, the tenure of the Hottensiah principles expired for purposes of proving a customary marriage.

Sections 107, 108 and 109 of the Evidence Act place the legal burden on the party who would fail if no evidence is adduced. The Marriage Act, 2014 did not re-enact section 10 of the repealed Matrimonial Causes Act, so the ordinary civil standard prevails, per Kamweru vs. Kamweru as adopted in subsequent decisions. Adultery, like fraud, requires slightly more than balance of probabilities.

Although article 159(2)(d) commands justice without undue regard to procedural technicalities, the distinct statutory grounds for divorce and nullification mean that failure to file a nullification petition is not a mere technicality. The parties never pleaded grounds for nullification, so the court could not convert the petition.