The High Court of Kenya at Kisii, in a landmark decision delivered on December 8, 2023, has asserted that the refund of dowry is a legal prerequisite for severing a customary marriage. The case, CKN Vs DMO (Civil Appeal 21B of 2022), presided over by Hon. Justice Kizito Magare, definitively sets a precedent on the legal status of both dowry and alimony in modern Kenyan law.
The appeal, which arose from a divorce petition, saw the wife (appellant) challenge a lower court order compelling her to return the dowry paid under Kisii customary marriage guidelines.
The court ruled that the return of dowry is necessary to signal the cancellation of a traditional marriage, just as the return of a marriage certificate cancels a Christian marriage.
Since the couple’s union involved both Kisii Customary Law and a Christian marriage, the court ordered the return of both the dowry and the marriage certificate.
The court firmly dismissed the appellant’s contention that she should not be ordered to return the dowry because it was paid to her parents. The judgment clarified that the wife is the party liable and must ensure the refund.
“The traditional marriage is cancelled by return of dowry. Whether the same is returned by her or her father, it is irrelevant. It is unnecessary to join the appellant’s parents to be able to get refund of dowry.”
The wife was advised that she has two years to file an indemnity suit against her father to recover the dowry amount.
The appellant’s request for alimony (spousal maintenance) was dismissed not due to lack of proof, but because the court declared the entire concept of alimony inconsistent with the Constitution.
The court cited Article 45(3) of the Constitution, which guarantees that parties to a marriage are entitled to equal rights before, during, and after its dissolution.
Justice Magare argued that alimony was rooted in gender inequality, noting that it ceased upon remarriage because the woman was assumed to have “a new man to maintain her.”
The ruling was unequivocal: “The concept of alimony is anathema to equality of men and women. It portrays women wrongfully as weak… With constitutional changes, the existence of alimony is repugnant to good order and equality of people in marriage before, during and after the marriage.” The judgment stressed that “parties must walk out with only scars of the marriage,” and neither party has a legal burden to maintain the other post-divorce.
The judgment provided clarity on the court’s jurisdiction and the importance of legal formalities:
- Children: The court affirmed that the proper forum for custody and maintenance of children is the Children Court (pursuant to Section 90 of the Children Act), not the divorce court, stressing that both parents have an equal right to the child.
- Pleadings: The court noted that the appeal was weakened because the parties are bound by their pleadings. Since there was “no contest” (no specific denial) on the dowry claim in the cross-petition, the trial court was justified in its order.
This landmark ruling significantly impacts family law, reinforcing cultural practices within a modern constitutional framework and firmly establishing the principle of gender equality in the financial obligations of divorcing spouses in Kenya.
Read the full judgement HERE.