CNM v FAI (Divorce Cause 001 of 2026) [2026] KEMC 796 (KLR)
The bottom line
#A Bungoma court dissolved a customary marriage by mutual agreement but ruled that child custody and maintenance must be decided by a children's court, not a divorce court.
What this practically means
#Executive summary
#Key legal issues
#Existence of a marriage capable of dissolution
A valid Luhya Customary Marriage subsisted between the parties, proved by the admitted payment of dowry
Before dissolving a marriage a court must satisfy itself that a dissoluble marriage exists. Both parties testified that they married under Luhya Customary Law and that dowry was paid on 28th November 2023. Section 43(2) of the Marriage Act recognizes payment of dowry as sufficient proof of customary marriage, and Cotran's Restatement confirms that a marriage arises where Bukhwi is at least partly paid. The marriage is a recognized African Customary Marriage under section 6(c) of the Act.
Whether adultery, cruelty and desertion were proved
Not proved; the parties' conflicting accounts, uncorroborated by independent evidence, made the evidence barely adequate
The standard is a balance of probabilities per Alexander Kamweru. The Petitioner relied on his own testimony; the Respondent denied all grounds but admitted separation since March 2025. With divergent accounts and no independent witness to corroborate either side, the court found the evidence barely adequate to determine whether the matrimonial offences were established on a balance of probabilities.
Irretrievable breakdown of the marriage
The marriage has irretrievably broken down under section 66(6)(h) of the Marriage Act, warranting dissolution
Both parties expressly stated during the hearing that they wanted a divorce. Section 66(6) lists the circumstances of irretrievable breakdown, including 'any other ground as the court may deem appropriate'. Since the parties no longer wish to be married, and Article 45 confers a corresponding right not to remain married, the court found the marriage beyond salvage and dissolved it.
Custody and maintenance of the children
Declined for want of jurisdiction; the children's court has exclusive jurisdiction under sections 90 and 91 of the Children Act
Section 85 of the Marriage Act directs that custody and maintenance be dealt with under the Children Act. Section 90 establishes the children's court with exclusive jurisdiction over custody matters, and section 91 lists custody orders among its exclusive powers. The divorce court therefore lacks jurisdiction, a position supported by CKN v DMO where Magare, J so held. The court also found the evidence inadequate.
Legal principles established
#- A customary marriage is proved by payment of dowry, which the Marriage Act recognizes as sufficient proof
- The standard of proof for matrimonial offences (adultery, cruelty, desertion) is a balance of probabilities
- A divorce court cannot make child custody orders; custody matters fall within the exclusive jurisdiction of the children's court
- Where parties expressly agree they no longer wish to remain married, the marriage may be dissolved on the ground of irretrievable breakdown under section 66(6)(h) of the Marriage Act
- A defective cause (Complaint instead of Petition) may be cured under Article 159(2)(d) of the Constitution, which requires justice to be administered without undue regard to procedural technicalities
Court orders
#- 1.The marriage celebrated between the Petitioner and the Respondent on 03rd January 2008 within Bungoma County under Luhya Customary Law is hereby dissolved
- 2.Decree nisi dissolving the marriage to issue forthwith
- 3.The decree nisi shall be made absolute thirty (30) days from the date of the judgment
- 4.Each party to bear their costs of this cause
- Jurisdiction invoked
- Matrimonial jurisdiction under the Marriage Act, 2014 and the Marriage (Matrimonial Proceedings) Rules; Article 159(2)(d) of the Constitution on procedural technicalities
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "CNM v FAI (Divorce Cause 001 of 2026) [2026] KEMC 796 (KLR)", Case Analysis (2026). Complaint dated 06th January 2026 (treated as a Divorce Petition). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/796/eng@2026-07-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.