DOWRY, DIVORCE AND CUSTOMARY RIGHTS IN KENYA

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Now onto today’s topic;

Dowry remains one of the most contested intersections between culture and modern family law in Kenya. When marriages break down, questions often arise about whether bride-price should be returned, who bears that responsibility, and how these customs align with today’s legal standards on equality and fairness. Recent court decisions continue to shape how dowry claims, divorce, and financial obligations between spouses are understood, and CKN v DMO (Civil Appeal No. 21B of 2022) [2023] KEHC 26379  is one of the cases that brings these issues sharply into focus. 

FACTS OF THE CASE 

The case was an appeal arising from a trial court’s divorce judgment. The parties had contracted both a Christian marriage and a Kisii customary marriage on December 3, 2017, but the appellant (the wife, CKN) left the matrimonial home in 2019. The marriage was eventually dissolved by the lower court.

The appellant appealed the trial court's decision on three main auxiliary issues, arguing that the court erred by.

1. Not granting her exclusive custody of the minor child.
2. Ordering her to return the dowry (Kshs 150,000) to the respondent (the husband, DMO). She argued that the dowry was paid to her parents, not her.
3. Failing to award her alimony and maintenance.

During the appeal process, the appellant failed or refused to file submissions despite being reminded five times. 

LEGAL ISSUES

The High Court considered four main issues:

• Jurisdiction: Whether a divorce court had the jurisdiction to deal with matters pertaining to the children of the divorcing couple.
• Alimony: Whether the concept of alimony was still valid and part of Kenyan law, considering the right to equality provided under Article 45 of the Constitution.
• Dowry Refund: Whether, in a divorce petition, the court could order the wife to return dowry to the husband, even if it was paid to the wife's parents.
• Submissions: Whether the court could issue a judgment despite one party failing to file submissions.

THE HIGH COURT'S HOLDING

The High Court, in a first appeal, made the following determinations:

1. On Alimony: The High Court held that alimony was no longer a reality in Kenya. It found that the concept of alimony is anathema to the equality of men and women enshrined in Article 45 of the Constitution.
2. On Dowry Refund: The court upheld the order for the return of dowry. The return of dowry was necessary to cancel the traditional marriage. The appellant (wife) was held responsible for the return, regardless of whether she or her father originally received it. The appellant was given two years to file an indemnity suit against her father to recover the dowry.
3. On Children Issues: The court held that the proper court to deal with the custody and access issues concerning the child was the Children Court, pursuant to Section 90 of the Children Act. The divorce court deals with mundane issues but children are not parties to divorce proceedings.
4. On Submissions: The court determined that submissions are not evidence, and therefore, the lack of filed submissions by the appellant did not change the trajectory of the matter or prevent the judgment from being issued.

The final orders issued by the High Court (DKN Magare, J) were:

• The appeal was dismissed
• There was no order as to costs. 

 LEGAL PRINCIPLES ESTABLISHED 

The judgment established or affirmed several significant legal principles in Kenyan jurisprudence:

1. Constitutional Primacy on Equality: Article 45 of the Constitution provides that parties to a marriage are entitled to equal rights at the time of marriage, during the marriage, and at its dissolution. This principle requires equality of treatment without discrimination on the basis of gender.
2. Abolition of Alimony: The concept of alimony is repugnant to the Constitution because it is based on the outdated notion that men and women are not equal and that men are the sole maintainers. Consequently, alimony is no longer part of Kenyan law, and neither spouse has the burden of maintaining the other post-divorce.
3. Dowry and Customary Dissolution: Dowry symbolizes the existence of a customary union, and its return is a mandatory requirement to formally cancel the traditional marriage.
4. Wife’s Dowry Responsibility: The wife is held responsible for ensuring the return of the dowry upon divorce, even if it was originally received by her parents, linking her directly to the dissolution requirement of the customary marriage.
5. Specialized Jurisdiction for Children: Matters concerning child custody, access, and welfare must be pursued in the specialized Children Court under Section 90 of the Children Act.
6. Pleadings are Binding: Parties are strictly bound by their pleadings. If a party fails to contest a claim (like the return of dowry) in their pleadings, the court’s ability to interfere with the original order is limited. 

In conclusion, this case establishes that while the Constitution ensures gender equality by abolishing patriarchal relics like alimony, it simultaneously affirms the custom-based dissolution requirement of dowry return, making the dowry obligation a transactional duty tied to the marriage certificate’s symbolic counterpart.

 

Catch you in the next blog!

 

Disclaimer- The information provided is for general informational purposes only and should not be considered as professional advice. Please consult a qualified professional for specific guidance. 

REFERENCES 

CKN v DMO (Civil Appeal 21B of 2022) [2023] KEHC 26379 (KLR) (8 December 2023) (High Court at Kisii, Magare J).