Jeo v Apo

4. The Appellant was dissatisfied with the Judgment and appealed to this Court vide a Memorandum of Appeal dated 3rd February, 2025. She listed the following Grounds of Appeal; 1. The Learned Trial Magistrate erred in law and in fact by finding that a customary marriage existed between the Appellant and the Respondent herein. 2. The Learned Trial Magistrate erred in law and in fact by disregarding the provisions of Section 96 (2) and (3) of the Marriage Act, 2014 which requires that all customary marriages be registered. 3. The Learned Trial Magistrate erred in law and in fact in failing to appreciate that the onus to prove a customary marriage was on the Respondent who did not produce a shred of evidence to support his claim. 4. The Learned Trial Magistrate erred in law and in fact by failing to appreciate that the Respondent did not plead any specific culture or custom under which he purportedly married the Appellant. 5. The Learned Trial Magistrate erred in law and in fact by disregarding the fact that Customary law is a question of law and must be accurately and definitely established which the Respondent failed to do. 6. The Learned Trial Magistrate erred in fact by finding that the Appellant filed a Cross-petition and sought to have the marriage dissolved when the Appellant filed only an answer to Petition seeking to dismiss the Respondent’s Petition. 7. The Learned Trial Magistrate erred in fact in finding that the parties started living together as husband and wife while the Appellant expressly denied that fact. 8. The Learned Trial Magistrate erred in law and in fact by disregarding the Appellant’s testimony and pleadings to the effect that she was not married to the Respondent under any customs and it not aware nor was she present for any marriage ceremony undertaken to that effect. 9. The Learned Trial Magistrate misdirected herself and relied on the wrong principles of law in reaching her decision. 5. She asked the Court to allow the Appeal and set aside the Judgment delivered on 23rd January, 2025. She also asked this Court to find that no marriage exists between her and the Respondent. 6. The Appeal was canvassed by way of written submissions. Appellant’s written Submissions 7. The Appellant submitted that the lower Court was wrong in finding that a customary marriage existed between her and the Respondent. She argued that a party alleging customary marriage bears the burden of proving the specific customs, rites, and ceremonies performed. She argued that the Respondent both in his testimony and his pleadings failed to demonstrate that a marriage ceremony was performed under any known customs. She submitted that the Respondent adduced no evidence, no witnesses, no description of rites, no token dowry, no parental involvement, and no independent corroboration. Respondent’s written Submissions 8. The Respondent submitted that the lower Court was right in finding that a marriage existed between him and the Appellant. He argued that Courts are empowered to recognize customary marriages, https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4069/eng@2026-03-19 2

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even where they have not been formalized through certificates. He also argued that the Appellant expressly admitted/conceded to the issue of the existence of the marriage in her reply to the petition. He submitted that the Appellant is merely attempting to use the lack of registration as a sword to escape the consequences of a marriage that she herself acknowledges in her pleadings and conduct. 9. The Respondent also submitted that, alternatively, and assuming that there was no customary marriage between them, the Court should find a presumption of marriage based on cohabitation. He argued that his subsequent cohabitation with the Appellant for a period of 30 years was long enough to raise a presumption of a marriage between them. He argued that a marriage may be proved by conduct, and the absence of formal documentation does not extinguish a marital relationship where parties have lived together as husband and wife. He stated that there was evidence that they carried themselves as husband and wife. Issues for Determination 10. Before I outline the issues for determination, I find it prudent at this earliest opportunity to make certain observations concerning the record of the lower Court. It is not clear whether the parties gave oral testimony before the lower Court. The typed proceedings show that the matter was scheduled for hearing on 13th November, 2024. When that day came, the advocates for the two parties attended Court, but there are no transcribed proceedings to show that the parties gave oral testimony in this petition for divorce. The record of appeal does not mention any proceedings pending transcription. 11. Based on the record, I observe that the lower Court disposed of the Divorce Petition without taking the oral evidence of the parties. I find that this was a serious omission because the Courts have always maintained that Divorce Causes must be disposed of by way of oral evidence. 12. I associate with the observations of the Court in H-P C S Vs M NA A (Divorce Cause No 2 of 2013) [2014] eKLR which observed as follows; “ As a matter of cause, petitions in divorce causes are to be disposed of by oral evidence. By their very character the allegations made in pleadings filed in divorce matters are provable by way of the parties attending court and making statements orally on oath to give vent or breathe life to their allegations. A petition is not in the nature of an application, and it ideally ought not be disposed of without a formal appearance by the party or parties in court”. 13. In the circumstances, it would therefore be prejudicial for this Court to discuss the merits of the said petition at this point. In the interest of justice, I shall set aside the judgment of the lower Court delivered on 23rd January, 2025, and all consequential orders, and order that the matter be sent back to the lower Court for the hearing of the said Petition. Disposition 14. The Appeal is hereby allowed, albeit on different grounds. 15. The Judgment of the lower Court delivered on 23rd January, 2025, and all consequential orders, are hereby set aside. 16. The file to be sent back to the lower Court for the hearing of the Petition. 17. No orders as to costs. 18. Orders accordingly. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4069/eng@2026-03-19 3

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DATED, DELIVERED AND SIGNED AT NAIROBI THROUGH THE MICROSOFT TEAMS ONLINE PLATFORM ON THIS 19TH DAY OF MARCH 2026. .................................. HON C. KENDAGOR JUDGE In the presence of: Court Assistant: Beryl Ms. Kiarie for the Appellant No attendance for the Respondent https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4069/eng@2026-03-19 4

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