She was not your wife, judge tells man seeking to end 22-year-union

Justice Helene Rafaela Namisi found that a man could not prove marriage to a woman he had cohabited with for 22 years and had three children..

The High Court has handed a man a shocker of his life after finding that a woman he was living with for 22 years and even had children, was not his wife.

The lovebirds lived together until December 2020, when the woman moved to the US. Aggrieved by her refusal to return to Kenya, the man, codenamed JTO, moved to a magistrate’s court to end the marriage with a woman codenamed AP.

The lower court was first to find that although he alleged that he married her in a traditional wedding, there was no evidence to presume the two had been married. He appealed the verdict before High Court Judge Helene Namisi.

She, too, ruled that although he had banked on Luo customary rites to claim marriage, he did not provide evidence to support his claims that all marriage formalities were concluded.

Justice Namisi observed that JTO needed to call experts as witnesses on Luo customs or witnesses who were present during the ceremony or conducted the rituals. “I concur with the trial court that the appellant failed to prove his case to the requisite standard. As such, I find no reason to interfere with the decision. The appeal is hereby dismissed,” ruled Justice Namisi.

The judge was of the view that once a couple completes customary rituals, they ought within six months to apply to the registrar of marriages for registration of the marriage. “Ostensibly, having overlooked the aspect of registration of his customary marriage, the appellant was locked out from seeking a dissolution of whatever nature of union he shared with the respondent,” she observed.

She said owing to the large number of adult Kenyans married customarily, strict adherence to the law would mean that most unions would not be recognised.

“It would be ludicrous to inform two individuals who have lived together for the better part of their adult lives, gone through rituals of a supposed marriage, held themselves out as husband and wife, borne three children, and generally suffered and enjoyed the ebbs and flows of life together, that their union is not considered a marriage simply because they failed to register the same and get a certificate,” she said.

Nevertheless, according to her, the man’s insistence on a divorce had more underlying things. She stated that it was puzzling for him to ask the court to be set free from the yokes of love, yet he was free from the word go. “It is difficult to comprehend why the Appellant would persist with this cause, yet he has been 'freed' from the union, the very remedy he sought in the trial court. I would hazard a guess that this goes beyond the mere divorce cause. There may be other interests at play that may not necessarily be reflected in the pleadings,” said Justice Namisi.

According to her, it was important to go beyond the law. In his case, JTO testified that he got married to AP under Luo customary law and had three children. He stated that after she left for US, she never returned home. To him, this was cruelty.

The man said she had caused him untold stress, anguish and emotional trauma. At the magistrate’s court, she acknowledged knowing about the case but never responded. The case was heard without her participation. Even with that, Senior Resident Magistrate Jael Aduke on November 28, 2022 found that the man had failed to implore the court that there was a marriage to grant him a divorce.

She ruled that despite cohabiting, the two love birds never registered their marriage. Aduke also found that it would be against the Marriage Act to rule that the two had been married.

The magistrate also found that JTO needed to reference expert evidence. In his appeal, the man argued that Aduke erred by failing to grant him a divorce and that the magistrate was wrong by departing from the facts of the case.

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