[2021] KEHC 5638 (KLR)

[2021] KEHC 5638 (KLR)

The High Court found that the appellant failed to prove the content of Kamba Customary Law regarding grounds for divorce, as required when a custom is neither notorious nor documented. The court held that, in the absence of such proof, it could not take judicial notice of the alleged permissibility of sleeping in...

Source-derived case information.

Citation
[2021] KEHC 5638 (KLR)
Parties
Appellant: EMN; Respondent: DNN
Court
High Court
Court Station
High Court at Machakos
Jurisdiction
Kenya
Judgment Date
5 July 2021
Case Number
Civil Appeal 164 of 2019
Procedural Posture
Civil Appeal / Judgment
Outcome
Appeal dismissed.
Judges
GV Odunga
Legal Topics
Customary Marriage, Divorce Proceedings, Irretrievable Breakdown, Grounds for Divorce, Burden of Proof, Customary Law Evidence
Source Language
english
Family and Children Customary Marriage Divorce Proceedings Irretrievable Breakdown Grounds for Divorce Burden of Proof Customary Law Evidence

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Summary, issues, holding and outcome

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Parties

EMN

Appellant

DNN

Respondent

Procedural Posture

Civil Appeal / Judgment

Legal Issues

  1. 1 Whether the trial magistrate erred in finding desertion as a ground for divorce under Kamba Customary Law.
  2. 2 Whether the trial magistrate applied the correct law in dissolving a marriage celebrated under Kamba Customary Law.
  3. 3 Whether the evidence supported the finding of irretrievable breakdown of the marriage.

Ratio Decidendi

The High Court found that the appellant failed to prove the content of Kamba Customary Law regarding grounds for divorce, as required when a custom is neither notorious nor documented. The court held that, in the absence of such proof, it could not take judicial notice of the alleged permissibility of sleeping in separate rooms, refusal of conjugal relations, or refusal to eat food prepared by a spouse as valid grounds for maintaining a marriage under Kamba Customary Law. The evidence showed that the marriage had irretrievably broken down: the parties no longer communicated, lived as a couple, or shared intimacy, and attempts at reconciliation had failed. The trial magistrate was correct...

Court Disposition

Appeal dismissed.

Orders

  • The appeal is dismissed.
  • No order as to costs.