BKG v NWT (Civil Appeal 147 of 2019)  KEHC 16399 (KLR) (Family) (16 December 2022) (Judgment)
Neutral citation:  KEHC 16399 (KLR)
Republic of Kenya
Civil Appeal 147 of 2019
MA Odero, J
December 16, 2022
1.The Appellant herein BKGE filed in the High Court the Memorandum of Appeal dated 28th November 2019 seeking the following orders:-
2.The Respondent NWT opposed the appeal. The matter was canvassed by way of written submissions. The Appellant filed the written submissions dated 29th June 2022 whilst the Respondent relied upon her written submissions dated 26th July 2022.
3.This appeal arises from the judgment delivered on 22nd November 2019 by Hon D.O. Mbeja Senior Resident Magistrate in Nairobi CM’s Divorce Case No. 369 of 2019.
4.In that case the Respondent had filed a Petition seeking dissolution of her marriage to the Appellant. After hearing evidence from both parties the learned trial magistrate found that indeed a marriage did exist between the couple. The court proceeded to dissolve said marriage and directed that a Decree Nisi be issued.
5.The Respondents case was that she got married to the Appellant in the year 2009 under Kikuyu Customary Law. That the couple cohabited as man and wife in the Ongata Rongai area of Kajiado County. Their union was not blessed with any children although the Respondent had five (5) children from her previous marriage to one SGM who unfortunately died as the result of a Road Traffic accident along the Naivasha road on 14th November 2014.
6.The Respondent filed a Petition for divorce in the Chief Magistrates Court alleging adultery and cruelty by the Appellant. She told the court that the marriage had irretrievably broken down.
7.On his part, the Appellant denied that he had ever married the Respondent under customary law or indeed under any other system of law. Appellant does however admit that he met and started a relationship with the Respondent. That in the year 2009 he introduced himself to the family of the Respondent in Naivasha and expressed an intention to marry her.
8.However, the Appellant states that he did not proceed with the marriage because he discovered that the Respondent was actually married to one SGM. The Appellant says that following this discovery he felt cheated and terminated the relationship. That he later got married to one LKM on 10th June 2014 at the Registrar’s office in Nairobi. The Appellant produced a copy of his marriage certificate as proof of his marriage.
9.As stated earlier the learned trial magistrate delivered a judgment on 22nd November 2019 in which he found that a marriage did exist between the couple and proceeded to allow the petition for dissolution of that marriage.
10.Being aggrieved by the judgment of the subordinate court and particularly with the finding of the trial court that a marriage existed between the couple the Appellant filed this appeal.
11.The appeal was based on the following grounds:-
Analysis and Determination
12.This being a first appeal the court is obliged to reconsider and re-evaluate the evidence adduced in the trial court and to draw its own conclusions on the same. In the case of Selle & another vs Associated Motor Boat Co. Ltd EA the court held as follows:-
13.The Appellant is not so much aggrieved by the dissolution of the marriage as much as he was aggrieved by the finding by the trial court that a marriage existed in the first place. The Appellant insists that he did not marry the Respondent. He states that he only made one visit to the family of the Respondent in Naivasha. The Appellant vehemently denies the evidence of the Respondent and her witness that he gave out an amount of Kshs 35,000 to be given to the husband of the Respondent to refund him for the dowry he had paid for the Respondent.
14.It is not disputed that before the Respondent met the Appellant she was married to another man with whom she bore five (5) children. Obviously, the Respondent cannot be said to have married the Appellant whilst she was still married to another man. The Respondent states that she and her first husband separated in the year 2000. That she met the Appellant in the year 2008 and they got married in 2009.
15.The Respondent insists that her marriage to her 1st husband which was conducted under Kikuyu Customary Law was also dissolved in accordance with the Kikuyu customs by refunding the dowry paid by the first husband. The Respondent states that it was the Appellant himself who gave out Kshs 35,000 to be given to the 1st husband as a refund of his dowry.
16.PW2 GNT who is a brother to the Respondent corroborated the evidence of the Respondent. PW2 confirms that the Appellant came to visit their family in Naivasha to seek the hand of the Respondent in marriage. That however the Respondents family declined to receive any dowry from the Appellant until the downy paid by the first husband had been refunded.
17.PW2 confirmed that the Appellant gave out Kshs 35,000 to refund the dowry. He states that he was sent by his parents and elders to deliver the money to the Respondents first husband. That he went to the family of the first husband (who later died in 2014) and gave them the Kshs 35,000 which they accepted. In this way, the Respondents 1st marriage was dissolved customarily leaving her free to marry again.
18.PW3 CNM an uncle of the Respondent told the court that he was an elder and stated that he was allowed to perform Kikuyu traditions. PW3 also confirmed that the Respondents marriage to her first husband was customarily dissolved. In his evidence PW3 says:-
19.All the witnesses gave consistent evidence and corroborated each other. I therefore find that the Respondent’s marriage to her first husband had been dissolved customarily and she had the capacity to enter into another marriage.
20.The next crucial question is whether the Appellant and the Respondent were actually married. The Appellant denied that he ever got married to the Respondent. On the other hand, the Respondent insists that she and the Respondent got married under Kikuyu Customary Law. That the couple began to cohabit in the year 2001 and later got married in the year 2009.
21.The evidence of the Respondent was that the Appellant came to visit her family in Naivasha. Although the Respondent speaks of a ruracio ceremony she does not give details of said ceremony.
22.PW3 told the court that the Appellant paid a dowry of 130 goats and Kshs 390,000. Neither the Respondent nor his brother PW2 made any mention of the goats or the Kshs 390,000. More pertinently, no witness stated that the ‘Ngurario’ ceremony which is central to a Kikuyu customary marriage was even conducted.
23.All in all I find that the evidence relating to the existence of a customary marriage is sketchy. The witness state that the Appellant was expected to return after the first visit to Naivasha but he never returned. Presumably, the Appellant was to return to complete the marriage rites. His failure to return means that the Kikuyu marital rites were not concluded. All in all I am not persuaded that all the rites for a Kikuyu Customary marriage were conducted.
24.Having discounted the existence of customary marriage the next question is whether a presumption of marriage could be found to exist. The Respondent told the court that she met the Appellant in the year 2001 and the two began to cohabit as man and wife. The Appellant says he met and befriended the Respondent in the year 2005. The Appellant does not deny that the two were cohabiting during this period. The couple eventually parted ways in November 2012. Therefore even if the court were to go with the Appellants version of events it is clear that the couple cohabited from 2005 – 2012 a period of seven (7) years.
25.In the case of Hortensia Wanjiku Yawe – vs – Public Trustee  KLR the Court of Appeal states as follows:-
26.There is evidence that the Respondent after meeting the Appellant and beginning to cohabit with him obtained an identity card which gave her name as NWK i.e. the Respondent took on the Appellants name as her surname. It is unlikely that she would have done this without the knowledge and consent of the Appellant. This is proof that the couple represented themselves as a married couple.
27.The period of cohabitation being seven (7) years is in my view leads to a presumption of marriage – this was not a fleeting love affair. The Appellant admits that he went to introduce himself to the family of the Respondent in Naivasha.
28.In Beth Nyandwa Kimani vs Joyce Nyakinywa Kimani & others  eKLR the court held as follows:-
29.Annexed to the Divorce Petition is a Deed of Separation dated 3rd January 2013. The Agreement is made between the Appellant and the Respondent and is duly executed by both parties in the presence of witnesses.
30.Clause (1) of that Deed of Separation provides as follows:-
31.This document clearly provides that the Appellant and the Respondent were cohabiting as man wife for a period of eleven (11) years. The document was signed by the Appellant. The Appellant does not deny having signed the document. Under cross-examination, the Appellant admitted that he had voluntarily signed the Deed of Separation.
32.The Appellant claims that when he signed the Deed of Separation he was sick and he only signed it to get rid of the Respondent because he wanted to be left in peace. If that was the case then why did it take so long for the Appellant to raise the issue of this alleged coercion? Why did he not move to have the document repudiated as soon as he had recovered from his illness? I reject the Appellants allegation that he was coerced into signing the Deed of Separation.
33.By his own admission the Appellant conceded that he and the Respondent cohabited as man and wife for a period of eleven (11) years. Cohabitation for that length of time certainly gives rise to a presumption of marriage between the two.
34.In his judgment the learned trial magistrate stated as follows:-
35.I cannot fault this finding by the trial court. Based on the evidence adduced by the parties it is clear that the Appellant and the Respondent held themselves out as a married couple. Accordingly, I find that a marriage did exist between the two.
36.Finally I find no merit in this appeal. The same is dismissed in it’s entirety. The costs of the Appeal will be met by the Appellant.
DATED IN NAIROBI THIS 16TH DAY OF DECEMBER, 2022.…………………………………MAUREEN A. ODEROJUDGE