CNM v FAI (Divorce Cause 001 of 2026) [2026] KEMC 796 (KLR)

c. The Respondent be ordered to pay for maintenance of the children of the marriage for an amount this Honourable Court deems fit and just to grant and the complainant to meet the education and medical needs of the children of the marriage d. Costs of this complaint be awarded to the Complainant e. That any other relief this Honourable Court deems fit and just to grant 5. The Petitioner averred that sometime in 2009, the parties herein were married under Luhya Customary Law, and that the Petitioner paid the Respondent’s dowry on 28th November 2023. 6. The parties herein established their matrimonial home on land parcel number East Bukusu/South Kanduyi/XXXX where they were blessed with three children: EBJN, RGN, and FTN. 7. The Petitioner further averred that they stayed harmoniously together until sometime in 2024 when the Respondent allegedly became adulterous, cruel, and deserted him as particularized in paragraphs 7, 8, 9 and 11 of the Petition. 8. The Respondent entered appearance and filed an Answer to the Petition dated 18th March 2026, denying all the particulars of adultery, cruelty, and desertion attributed to her by the Petitioner. She invited the Petitioner to strict proof of his averments in the instant Petition. 9. It is against this backdrop that this Petition was set down for hearing for the parties herein to prove the averments in their respective pleadings on a balance of probabilities. Evidence Petitioner’s Case 10. PW1 CNM adopted his witness statement on record as his evidence in chief. His testimony was largely a rendition of his averments in the Petition; thus, it will not serve any purpose to reproduce the same here. He produced the documents he had filed herein as exhibits. 11. He stated in cross-examination that he still maintains the Respondent and their children despite having moved out of their matrimonial home. He reiterated that his prayer before this court was to divorce the Respondent since he feared that if he continued being married to the Respondent, he might be found dead in his matrimonial home. He admitted that he is currently cohabiting with his friend Lorraine Naliaka. 12. He added that he moved out of the matrimonial home due to the Respondent’s cruelty and hostility. He also sought physical custody of the children. 13. RW1 FAI adopted her statement dated 03rd April 2026 as her evidence in chief. Her testimony was that the Petitioner married her on 03rd January 2008 under Luhyia Customary Law. 14. She stated that the Respondent voluntarily deserted their matrimonial home sometime in March 2025 and went to stay with Lorraine Naliaka in a rental house in Bungoma town. She denied committing adultery during the pendency of their marriage. She also denied being cruel towards the Petitioner and forcing the Petitioner to desert their matrimonial home. 15. She supported the Petitioner’s decision to divorce her. She added that she should be granted the children’s physical custody and that she be allowed to continue staying in the matrimonial home together with the children. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/796/eng@2026-07-14 2

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16. In cross-examination, she admitted that the Petitioner had paid her dowry. She added that the Petitioner was not suitable to have the children’s physical custody since he is called ‘simba’ due to his temper. She denied assaulting the Petitioner during the pendency of their marriage. Analysis And Determination 17. This court has duly considered the Petition and the evidence on record in relation to the law and the Marriage Act, 2014 (“the Act”). It is this court’s considered view that the issues for determination are whether the Petitioner has proved his Petition to the required standards, and whether orders for custody and maintenance of the children are merited. Whether the Petitioner has proved the Petition to the required standards 18. It is noteworthy that before proceeding to determine whether a marriage should be dissolved, a court must first satisfy itself that there exists a marriage capable of dissolution. 19. The Petitioner’s evidence is that he married the Respondent sometime in 2009 under Luhya Customary Law. He also testified that he paid the Respondent’s dowry on 28th November 2023. The Respondent corroborated the Petitioner’s testimony that they were married under Luhya Customary Law, and that the Petitioner paid her dowry. 20. Section 43 (2) of the Act recognizes payment of dowry as suficient proof of customary marriage.Eugene Cotran’s Restatement of African Customary Law Vol. 1 (The Law of Marriage and Divorce) at Page 50 (Chapter 5 on the Luhya Marriages), provides as follows on the efiect of payment of dowry with respect to African Customary Marriage: “ 7. Efiect of non-payment of marriage consideration: No valid marriage can arise in Luhya law if no Bukhwi is paid. However, a marriage will arise if Bukhwi is partly paid…” 21. Guided by the authorities above, and given that the parties herein are in agreement that the Petitioner paid the Respondent’s dowry, and that they contracted a marriage under Luhya Customary Law, it follows that there is a subsisting African Customary Marriage recognized under section 6 (c) of the Act subsisting between the parties herein. 22. The Petitioner seeks the dissolution of the marriage herein. Section 69 of the Marriage Act provides the grounds for the dissolution of a Customary Marriage as follows: 23. (a) adultery; (b) cruelty; (c) desertion; (d) exceptional depravity; (e) irretrievable breakdown of the marriage; or (f) any valid ground under the customary law of the petitioner. The Petitioner relied on the grounds of adultery, cruelty and desertion for dissolution of the marriage herein. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/796/eng@2026-07-14 3

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24. The law in this jurisdiction is that the standard of proof in proving grounds for divorce is on a balance of probabilities as held by the Court of Appeal in Alexander Kamweru v Anne Wanjiru Kamweru [2000] eKLR, where it was stated: “ Certainly cruelty or desertion may be proved by a preponderance of probability, that is to say that the Court ought to be satisfied as to feel sure that the cruelty or desertion, or even adultery (all being matrimonial ofiences) has been (as the case may be) established”. 25. This court will now proceed to determine sequentially if the Petitioner proved the said grounds for divorce to the required standards. 26. The Petitioner sought to rely on his own oral testimony to prove the grounds of divorce he relied upon in his Petition. The Respondent, on her part, denied committing the grounds of divorce relied upon by the Petitioner. However, she admitted that they have been separated since March 2025, when the Petitioner reportedly voluntarily left their matrimonial home and began cohabiting with LN in Bungoma town. 27. Given the divergent positions taken by the parties herein on who was to blame for the breakdown of their marriage, and in the absence of any independent witness to corroborate either party’s testimony, this court finds and holds that the evidence on record is barely adequate for this court to determine whether the Petitioner proved the grounds of divorce herein on a balance of probabilities. 28. However, the parties herein were in agreement during the hearing of this matter that they should be divorced. This begs the question of whether the marriage herein has irretrievably broken down. 29. A marriage is deemed to have irretrievably broken down in the circumstances set out in section 66 (6) of the Act. Section 66 (6) of the Act provides thus: “ (6) A marriage has irretrievably broken down if— (a) a spouse commits adultery; (b) a spouse is cruel to the other spouse or to any child of the marriage; (c) a spouse wilfully neglects the other spouse for at least two years immediately preceding the date of presentation of the petition; (d) the spouses have been separated for at least two years, whether voluntary or by decree of the court, where it has; (e) a spouse has deserted the other spouse for at least three years immediately preceding the date of presentation of the petition; (f) a spouse has been sentenced to a term of imprisonment for life or for a term of seven years or more; (g) a spouse sufiers from incurable insanity, where two doctors, at least one of whom is qualified or experienced in psychiatry, have certified that the insanity is incurable or that recovery is improbable during the life time of the respondent in the light of existing medical knowledge; or https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/796/eng@2026-07-14 4

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(h) any other ground as the court may deem appropriate.”(Emphasis added) 30. This court has already stated in this judgment that the parties herein want out of this marriage. There is no love lost between them. The marriage herein is as dead as a dodo. Simply put, there is no marriage between the parties herein capable of being salvaged. 31. A person’s right to marry a person of the opposite sex based on their free consent under Article 45 gives a person a corresponding right not to continue being married to a person they do not want to continue being married to. 32. The parties herein having expressly stated that they no longer want to continue being married to each other, it follows that this court must set in motion the said parties’ right not to continue being married to a person they do not want to continue being married to. 33. The upshot of the above is that the marriage herein has irretrievably broken down per section 66 (6) (h) of the Marriage Act. 34. In the circumstances, this court must make the painful decision of putting asunder what God had put together by unshackling the parties herein from the chains of a sour marriage that no longer serves their interests. Whether orders for custody and maintenance of the children are merited 35. The Petitioner prayed for custody of the children of the marriage. He also urged this court to order the Respondent to maintain the children. This was opposed by the Respondent, who also demanded the children’s physical custody and demanded that the Petitioner be ordered to maintain the children. 36. Section 85 of the Marriage Act provides that an order concerning Custody and maintenance of children shall be dealt with in accordance with the Children Act and any other written law relating to children. 37. Section 90 of the Children Act establishes the children’s court, which has the exclusive jurisdiction of hearing and determining matters relating to the custody of children. Child custody orders sought by the Petitioner and the Respondent are among the orders a children's court has the exclusive jurisdiction to grant under section 91 of the Children Act. 38. This court is of the considered view that this court, sitting as a divorce court, lacks the jurisdiction to exercise the jurisdiction granted to the Children's Court under section 91 of the Children Act. 39. The position taken by this court on this issue finds support in CKN v DMO (Civil Appeal 21B of 2022) [2023] KEHC 26379 (KLR), where Magare, J expressed himself as follows on this issue in a divorce petition: The child has a right which is inalienable to both the father and mother. If there are any issues, then the same should be dealt by other means. The court dealing with divorce deals with mundane issues but children are not parties. The proper court to deal with the nitgritties of the children is the children’s court pursuant to section 90 of the Children’s Act. (Emphasis added) 40. In any event, the evidence led by the Petitioner and the Respondent on this issue is barely adequate for this court to grant child custody orders in this matter. Therefore, this court declines the invitation to make child custody and maintenance orders in this divorce cause. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/796/eng@2026-07-14 5

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Determination 41. 42. The upshot of the foregoing is that the Petitioner’s Petition dated 06th January 2026 is allowed in the following terms:a. The marriage celebrated between the Petitioner and the Respondent herein on 03rd January 2008 within Bungoma County under Luhya Customary Law is hereby dissolved b. Decree nisi dissolving the marriage herein to issue forthwith c. The decree nisi in (b) above shall be made absolute thirty (30) days from the date of this judgment d. Each party to bear their costs of this cause It is so ordered. JUDGMENT READ, SIGNED, AND DELIVERED IN OPEN COURT AT BUNGOMA THIS 14TH DAY OF JULY 2026 T. O. OMONO SENIOR RESIDENT MAGISTRATE In the presence of: Mr. Waswa for the Petitioner Ms. Nanjala for the Respondent Petitioner C/A: Mr. Rioba https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/796/eng@2026-07-14 6

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