https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10908

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KIAMBU** **CIVIL APPEAL NO. E005 OF 2025** **BRANDAN WAWERU MAGONDU…………...** ..................... **APPELLANT** **-VERSUS-** **SALLY WAIRIMU NDUGI** **..................................................... RESPONDENT** **JUDGEMENT** ***[Being an appeal from the judgment/decree of the Hon. M.A Opondo ,Senior Principal Magistrate in Kiambu Chief Magistrate’s Court Divorce Cause No.E009 of 2023, delivered on 20th March,2025]*** 1. **INTRODUCTION** 2. This is an appeal from the judgment delivered by the trial magistrate in the lower court on 20th March,2025, wherein the learned magistrate held that the Appellant and the Respondent were married under the doctrine of presumption of marriage and thus dissolved the marriage between the Appellant and the Respondent and granted consequential orders. 3. The Appellant being dissatisfied with the decision of the lower court filed the present appeal citing the following as grounds of appeal:- 1. ***THAT*** *the learned Trial Magistrate erred in law and fact by* *holding that the Appellant and the Respondent were married under the doctrine of presumption of marriage.* 2. ***THAT*** *the learned Trial Magistrate erred in law and fact by declaring that the Appellant and Respondent married under the doctrine of presumption of marriage which order was not prayed for in the Respondent’s Petition for Dissolution of marriage.* 3. ***THAT*** *the learned Trial Magistrate erred in law and fact and failed to uphold the principle that parties are bound by their pleadings thereby entering into the realm of drafting pleadings on behalf of parties.* 4. ***THAT*** *the learned Trial Magistrate erred in law ,misconceived and misapplied the provisions of the Marriage Act,2014 and the transitional provisions made thereunder thereby came to an absurd and monumental error that the Appellant who is/was in a civil marriage before and during the pendency of the Divorce Petition herein and was married to the Respondent under presumption of Marriage.* 5. ***THAT*** *the learned Trial Magistrate erred in law in holding that the non-registration of the Appellant’s marriage was a procedural irregularity which automatically does not invalidate the union.* 6. ***THAT*** *the learned Trial Magistrate erred in fact in holding that the course of action arose in 2010 where parties were cohabiting.* 7. ***THAT*** *the learned Trial Magistrate erred in law and fact by holding that the marriage Act 2014 and Matrimonial Property Act No.49 of 2013 are not applicable in this matter as the cause of action arose before the said statutes were enacted and accept be applied retrospectively.* 8. ***THAT*** *the learned Trial Magistrate erred in law in holding that the Marriage Act 2014 was not applicable in this matter by not taking judicial notice of the transitional clause under section 96 of the Marriage Act and the Notice published by the Attorney General in Gazette Notice No.5345, of 9th June,2017.* 9. ***THAT*** *the learned Trial Magistrate erred in law in holding that appropriate section in regard to this matter were the grounds for dissolution of marriage set in section 66(6) of the Marriage Act as applicable in this matter as the grounds relate to civil marriages.* 10. ***THAT*** *the learned Trial Magistrate in relying on the grounds for dissolution of marriage as set out in Section 66(6) of the Marriage Act contradicted herself in her prior holding that the Marriage Act is not applicable in the trial suit.* 11. ***THAT*** *the learned Trial Magistrate erred in law and in fact in holding that the Petitioner’s desertion amounted to cruelty as a ground for dissolution of marriage under section 66(6) of the Marriage Act.* **Duty of the First Appellate Court** 1. This being a first appeal, this Court is under a duty to reconsider and re-evaluate the entire evidence and draw its own conclusions while bearing in mind that it neither saw nor heard the witnesses testify. 2. This principle was settled ***Selle and Another vs. Associated Motor Boat Co. Ltd & Others [1968] EA 123***, this principle was enunciated thus: ***“...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect..."*** 1. **BACKGROUND** 2. The parties herein started cohabiting as husband and wife in June 2010 and on 1st July, 2018 they celebrated there marriage under Kikuyu customary marriage lawfully married in year 2010 under Kikuyu Customary Law, having fulfilled the customary rites including ***ruracio*** and ***ngurairo.*** 3. The Respondent the Petitioner in the lower court instituted divorce proceedings on the grounds that the marriage had irretrievably broken down, citing desertion and cruelty. The lower court found that the marriage was irretrievably broken down and ordered its dissolution in accordance with customary law. **The Appeal** 1. The Appellant’s main grievances are that the lower court erred in fact and in law by dissolving the marriage under Kikuyu customary law instead of statutory law, and that the evidence did not support the dissolution of the marriage. 2. The Respondent opposes the appeal, maintaining that the lower court correctly applied Kikuyu customary law as the marriage was contracted under it, and that sufficient evidence of irretrievable breakdown was adduced. 3. **ISSUES FOR DETERMINATION** 4. Upon reviewing the pleadings, the record of appeal, and the rival submissions, this Court distills the following issues for determination: 5. ***Whether the learned Trial Magistrate erred in law in holding that the non-registration of the Appellant’s marriage was a procedural irregularity which automatically does not invalidate the union.*** 6. ***Whether the trial magistrate misapplied the doctrine of presumption of marriage.*** 7. ***Whether the marriage had irretrievably broken down.*** 8. ***Whether the appeal has merit.*** 9. **ANALYSIS AND DETERMINATION** 10. ***Whether the learned Trial Magistrate erred in law in holding that the non-registration of the Appellant’s marriage was a procedural irregularity which automatically does not invalidate the union.*** 11. The existence of a Kikuyu customary marriage is legally recognized. For the marriage to be valid, both parties must have capacity (legal age, mental soundness), and families must consent. Furthermore, the sacred Ngurario rite must be completed. 12. It is common ground that the parties cohabited as husband and wife from June 2010 and subsequently celebrated a Kikuyu customary marriage on 1st July 2018. It is evident that the necessary customary rites, specifically *Ruracio* and *Ngurario,* were fully performed, rendering the marriage lawful. 13. Accordingly, the validity of the parties' customary marriage stands as an admitted fact. This Court formally records that the parties are lawfully wedded spouses, an issue that is no longer within the arena of dispute. 14. However, the Appellant argues that the trial court wrongly held that the Marriage Act was inapplicable while at the same time relying on Sections 65 and 66 thereof. 15. Section 96 of the Marriage Act contains transitional provisions preserving marriages celebrated before commencement of the Act. Section 96(1) provides: ***"A marriage celebrated before the commencement of this Act which is valid under any written or customary law shall continue to be valid."*** 1. Section 44 of the Marriage Act further provides that failure to register a customary marriage does not invalidate an otherwise valid customary marriage. 2. Gazette Notice No. 5345 dated 9th June 2017 required registration of existing customary marriages. However, Section 96 does not invalidate marriages merely because they had not yet been registered. 3. As such, failing to register does not automatically invalidate the marriage, but makes proving the union harder during disputes over property, divorce and inheritance. 4. The Marriage Act brought a transformative approach to the manner of proving a customary marriage. Prior to 2014, proof of customary marriage required a petitioner to invoke the principles in ***Hottensiah Wanjiku Yawe vs. Public Trustee;*** 5. the onus of proving customary law marriage was generally on the party who claimed; 6. the standard of proof was the usual one for a civil action (on a balance of probabilities); 7. evidence as to the formalities required for a customary law marriage must be proved to that standard; 8. long cohabitation as a man and a wife gave rise to a presumption of marriage in favour of the party asserting it; 9. only cogent evidence to the contrary could rebut the presumption; and 10. if specific ceremonies and rituals were not fully accomplished, that did not invalidate such a marriage. 11. In the present case, this Court agrees that the existence of Kikuyu customary Law has been proved on a balance of probabilities; the essential ingredients having fully proved. I note that the said union was never registered but failing to do so does not automatically invalidate the marriage. 12. ***Whether the trial magistrate misapplied the doctrine of presumption of marriage.*** 13. The Court of Appeal in ***Phylis Njoki Karanja & 2 others v Rosemary Mueni Karanja & another [2009] eKLR*** held that the presumption of marriage could be drawn from long cohabitation and acts of general repute. It held as follows: ***“Before a presumption of marriage can arise a party needs to establish long cohabitation and acts of general repute; that long cohabitation is not mere friendship or that the woman is not a mere concubine but that the long cohabitation has crystallized into a marriage and it is safe to presume the existence of a marriage.”*** 1. In ***MNK v POM***[***; Initiative for Strategic Litigation in Africa (ISLA) (Amicus Curiae) (Petition 9 of 2021***](https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/15)***) [2023] KESC 2 (KLR),*** the Supreme Court held as follows; “***We find it prudent at this juncture to lay out the strict parameters within which a presumption of marriage can be made:*** 1. ***The parties must have lived together for a long period of time.*** 2. ***The parties must have the legal right or capacity to marry.*** 3. ***The parties must have intended to marry.*** 4. ***There must be consent by both parties.*** 5. ***The parties must have held themselves out to the outside world as being a married couple.*** 6. ***The onus of proving the presumption is on the party who alleges it.*** 7. ***The evidence to rebut the presumption has to be strong, distinct, satisfactory and conclusive.*** 8. ***The standard of proof is on a balance of probabilities.”*** 9. But what is cohabitation? Under Section 2 of the Marriage Act, “cohabit” means to live in an arrangement in which an unmarried couple lives together in a long-term relationship that resembles a marriage. I will follow this definition. 10. The Appellant herein does not deny that they ever cohabited with the Respondent. He actually acknowledges and states that they lived together as husband and wife from the year 2010 to 2020 which amounted to a relatively long cohabitation as they were both of age and sound mind when entering into the union. As a result of which two (2) children were born. 11. The lower Court presumed the existence of a marriage between the two on account of long cohabitation. It held that the parties were cohabitees and had held themselves out as a husband and wife. It pronounced itself as follows; “***In consideration of the several factors, existing in the said relationship including the period of stay, their level of interaction, and close prostrating during the said period, the court concludes that the parties cohabited, while holding out, of other right thinking members of the society who must have presumed that the two were in a marriage. During the transaction the court concludes that the 2 must therefore have gone through the whole transaction as a couple.”*** 1. I have re-examined the evidence placed before the lower Court and the applicable law to ascertain whether the lower Court arrived at the correct position. 2. Under Section 2 of the [Marriage Act](https://new.kenyalaw.org/akn/ke/act/2014/4), **“cohabit”** means to live in an arrangement in which an unmarried couple lives together in a long-term relationship that resembles a marriage. I will follow this definition. 3. The Court of Appeal in ***Phylis Njoki Karanja & 2 others v Rosemary Mueni Karanja & another [2009] eKLR*** held that the presumption of marriage could be drawn from long cohabitation and acts of general repute. It held as follows: ***“Before a presumption of marriage can arise a party needs to establish long cohabitation and acts of general repute; that long cohabitation is not mere friendship or that the woman is not a mere concubine but that the long cohabitation has crystallized into a marriage and it is safe to presume the existence of a marriage.”*** Now we go to the question of how do we prove cohabitation; 1. Section 119 of the Evidence Act, Cap 80 Laws of Kenya, provides as follows:- *“The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.”* 1. The Court in ***Mary Njoki v John Kinyanjui Mutheru [1985]eKLR*** observed as follows; ***“In my judgment, before a presumption of marriage can arise, a party needs to establish long cohabitation and acts showing general repute. If the woman bears a child or better still children, so that the man could not be heard to say that he is not the father of the children, that would be a factor very much in favour of presumption of marriage. Also, if say, the two acquired valuable property together and consequently had jointly to repay a loan over a long period, that would be just what a husband and wife do and so it would be unreasonable to regard the particular man and woman differently…..To sum it, there has to be evidence that the long cohabitation is not close friendship between a man and woman, that she is not a concubine but that the cohabitation has crystallized into a marriage and that it is safe to are all too apparent in the Yawe and in Mbiti (supra).”*** 1. The Respondent alleged that there was cohabitation for the purposes of a presumption of marriage. Based on the above principles, she had the onus of proving the presumption of marriage. 2. Upon reviewing the Lower Court records, this Court notes that other than the Respondent stating that they cohabited with the petitioner she provided evidence and also called independent witnesses who proved such cohabitation and repute that the two (2) held out as husband and wife. 3. The Respondent did not merely assert that the parties cohabited. She adduced evidence and called independent witnesses who confirmed that the parties lived together and were generally regarded as husband and wife. 4. The evidence of the Appellant's own mother, Ann Wangui Magondi (DW2) testified that she knew the respondent for 13 years and she used to visit her in Kajiado and this was particularly significant. 5. DW2 confirmed that she knew the Respondent as the Appellant's wife and acknowledged the relationship between the parties. Her testimony was independent evidence emanating from the Appellant's family and corroborated the Respondent's assertion that the parties were publicly recognized as husband and wife. 6. Such evidence of family recognition is a strong indicator of general repute and reinforces the conclusion that the relationship had crystallized into a marriage. 7. Upon reviewing the evidence tendered in the lower Court, I am of the view that there was credible proof of cohabitation between the parties as witnesses established the same. 8. Significantly, the Appellant's own mother also acknowledged the relationship between the parties and identified the Respondent as the Appellant's wife since she indicated that the Appellant had told her that the Respondent had stopped sleeping in the main bedroom. 9. That evidence, coming from the Appellant's own family, substantially strengthened the Respondent's case on general repute and the existence of a valid marital union. 10. The Trial Court declared that the Appellant and the Respondent were presumed to be married by virtue of long cohabitation, joint responsibilities and public presentation as husband and wife and proceeded to dissolve the presumed marriage. This is strongly affirmed. 11. ***Whether the said Marriage is irretrievably breakdown.*** 12. The Respondent together with the independent witnesses and testified that: 13. the parties had separated for a considerable period; 14. the Appellant had deserted the matrimonial home; 15. there had been constant conflict; 16. there was no possibility of reconciliation. 17. The Appellant did not place before the trial court any evidence demonstrating a genuine willingness to resume cohabitation or preserve the marriage. 18. In an instance whereparties have remained separated for a prolonged period and there is no realistic prospect of reconciliation, the marriage should not be artificially sustained. 19. I am therefore, not inclined to compel parties herein to remain in a marriage that has plainly ceased to exist in substance. 20. **DISPOSITION & FINAL ORDERS** In the upshot; 1. This Court finds no merit in the appellant’s appeal and the same is dismissed in its entirety. 2. The Judgment/decree in Kiambu Chief Magistrate’s Court Divorce Cause No.E009 of 2023, delivered on 20th March,2025 is hereby affirmed. 3. Each party shall bear its own costs of this appeal. **DELIVERED AND SIGNED AT… MALINDI….THIS…17TH….DAY OF JULY.2026.** \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ **C.AKAIGWA** **JUDGE** In the presence of: Ms. Akoth H/B for Mr. Oyunge for the Appellant N/A for Respondent Nasra C/A