Court shocker: Man not married despite 10-year union, children

Imagine living with someone under the same roof for a decade, sharing a bed, meals, bathroom and toilet, kitchen and seats, watching movies together, enjoying the little niceties of life and even sealing your love with two children.

Then, suddenly, the roses turn thorny and unbearable, forcing you to seek the court’s intervention to part ways.

But the court finds a problem with all your lovey-dovey arrangements and declares that you were never married at all, not even in a come-we-stay or jump-the-fence kind of way.

This is the story of a man codenamed MG and a woman codenamed BW, whom he believed to be his wife.

In 2019, MG sued BW seeking a divorce, anchoring his case on the presumption of marriage and customary traditions. He claimed that their life together began in 1993, when he moved into her house in King’ong’o Church View Estate, where they cohabited for a decade.  

According to him, they had two children, and he fulfilled Kikuyu marriage customs to be recognised as her husband.

MG told the court he had paid Sh20,000 as dowry to her family. He also produced an obituary as evidence, showing that her family had referred to him as an ‘in-law’.

Dissolution of marriage

The man argued that he needed to part ways, claiming that in 2013, the woman began an adulterous relationship with another man, codenamed FR ERM.

He sought dissolution of the alleged marriage and compensation from both the woman and her alleged lover.

MG had first filed the case in a lower court, but the magistrate ruled that no marriage existed between them in the first place.

Aggrieved, he escalated the dispute to the High Court before Justice Maureen Odero.

In his appeal, MG raised 10 issues among them that the magistrate had failed to consider the years he had lived with BW and their children.

In her response, BW denied there was ever a valid or recognisable marriage between her and MG, the father of her two children.

She also dismissed claims of having sexual escapades with another man while still with him.

However, BW admitted that MG had lived with her for a decade and that the two minors were indeed his.

Kikuyu customs

According to BW, MG ought to have clearly demonstrated that they were married—either by proving long-term cohabitation or by showing that he had honored Kikuyu customary rites.

Justice Maureen Odero, however, sided with BW and upheld the magistrate’s verdict.

The judge noted that MG failed to bring witnesses to confirm that he had performed the ngurario ceremony—the final and most critical step in formalising a Kikuyu marriage after dowry has been paid.

She further observed that no evidence was presented to show that dowry had been paid in the first place.

“The central feature of any Kikuyu customary marriage is the ngurario ceremony. The appellant did not claim, much less prove, that such a ceremony ever took place between himself and the first respondent. I find and hold that the evidence adduced by the appellant was not sufficient to prove, on a balance of probabilities, that he entered into a customary marriage with the first respondent,” ruled Justice Odero.

The second issue was whether MG and BW could be presumed to be married on the basis of living together for a decade and having children.

Justice Odero rejected this argument as well. According to her, cohabitation does not lead to a presumption of marriage. She said that there must be evidence to show that during the time the love birds are together, cohabitation had crystallized into a marital union.

She listed the factors to demonstrate this, including whether they got children together, whether the community considered the two as husband and wife, whether the two carried on business jointly or whether they took a loan jointly, whether the two held a joint bank account and so forth.

Nevertheless, for BW and MG, she said that although they were together for a decade, and had two children, there was nothing else or someone to show they were carrying themselves as a husband and wife.

The judge further dismissed the man’s obituary evidence by finding that he did not call anyone to confirm it. She also threw out his adultery allegations. She said that he was unsure about what type of marriage he had contracted with her.

He ordered that he should shoulder the cost of the case.