TSA v S O

High Court, Appellate Side, Kisii

19th October 1979

Cotran J

Civil Appeal No 57 of 1978

Customary law - divorce – criteria - failure to establish matrimonial offence not fatal to petition – Luo customary law.

In the case of a marriage celebrated under Luo customary law a wife’s petition for divorce will not fail merely because she cannot establish the existence of matrimonial offence as this is only one of the matters to be taken into account, the other consideration being (a) the existence and number of children, (b) the ability and willingness of her father to return the dowry, and (c) generally whether the marriage has irretrievably broken down.

Appeal

T S A appealed to the High Court (Civil Appeal No 57 of 1978) against the dismissal by VO Adinda Esq in the District Magistrate’s Court, Homa Bay (Divorce Suit No 21 of 1977), of her petition for divorce from S O. The facts are set out in the judgment of Cotran J.

No case was cited in the judgment.